author: NEUMANN, Justice.

text:
    2004 ND 23
    STATE of North Dakota, Plaintiff and Appellee, v. Todd ROTH, Defendant and Appellant.
    No. 20030102.
    Supreme Court of North Dakota.
    Jan. 28, 2004.
    Rehearing Denied Feb. 25, 2004.

      Steven Balaban, Bismarck, for defendant and appellant.
    Cynthia M. Feland, Assistant State’s Attorney, Bismarck, for plaintiff and appel-lee.
   NEUMANN, Justice.

[¶ 1] Todd Roth appeals the criminal judgment and the trial court’s decision denying his motion to suppress evidence seized during a search of his residence. The trial court found probable cause did not support a no-knock provision in the authorized search warrant, but the officers acted reasonably when they executed the search warrant without utilizing the no-knock provision. Roth contends the trial court erred in denying his motion to suppress evidence because probable cause did not exist, the trial court improperly relied on a confidential informant’s tip, and the information supporting probable cause was stale. We affirm.

I

[¶ 2] Metro Area Narcotics Task Force member and Morton County Sheriffs Deputy Dion Bitz applied for a no-knock search warrant for Todd Roth’s Bismarck, North Dakota, residence on August 20, 2002. Deputy Bitz presented an affidavit alleging Roth’s involvement with persons suspected of drug trafficking. The affidavit also set forth Roth’s previous conduct; On May 3, 2002, Roth’s vehicle was searched and officers found marijuana, methamphetamine, and a loaded .45 caliber magazine clip, which belonged to a gun that Roth informed the officers was at his residence. On May 7, 2002, officers searched Roth’s residence and uncovered a scale and mirror containing residue. The warrant application contained tips from a confidential informant who allegedly witnessed Roth cooking methamphetamine at Roth’s residence. According to the application, the informant had previously provided reliable information that resulted in both state and federal prosecutions.

[¶ 3] The magistrate issued the search warrant containing the no-kn'ock authorization on August 20, 2002. Law enforcement executed the search warrant on August 28, 2002. The executing officer knocked and announced his presence before executing the search warrant, despite the no-knock authorization. Roth was subsequently arrested and charged with possession of methamphetamine, possession of drug paraphernalia, and manufacture of methamphetamine.

[¶ 4] Roth moved to suppress evidence seized during the search. The trial court determined the no-knock authorization was unsupported by exigent circumstances. However, the trial court applied the good: faith exception to the exclusionary rule because the no-knock provision was not used in executing the search warrant. The trial court found the officers executing the search warrant realized the no-knock provision was invalid and therefore knocked and announced their presence. Roth appeals.

II

[¶ 5] On appeal, we review the sufficiency of information before the magistrate independent of the trial court’s decision and use the totality-of-the-circumstances test. State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994).

“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers' .;. which is not weighed in individual layers but in the “laminated” total.’ ”

State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted). “Whether probable cause exists to issue a search warrant is a question of law.” State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861. Questions of law are fully reviewable. State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811.

[¶ 6] We generally defer to a magistrate’s determination of probable cause if a substantial basis for the conclusion exists, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination. State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490. This Court defers to the trial court’s findings of fact and resolves conflicts in testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652.

[¶ 7] “[P]robable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). “The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place.” Rydberg, 519 N.W.2d at 308.

Ill

[¶ 8] Roth argues probable cause did not exist to support the issuance of the search warrant. Specifically, Roth argues the trial court erroneously relied on Deputy Bitz’s conclusory statements regarding the informant’s tip. According to Roth, the informant’s tip should have been disregarded because Deputy Bitz failed to independently verify the informant’s reputation for truthfulness or verify the accuracy of the informant’s tip through corroboration or independent investigation.

[¶ 9] We have previously identified three types of informants with varying degrees of reliability: citizen, confidential, and anonymous. “[A] magistrate must take into account the status of an informant in judging his credibility or reliability.” State v. Ronngren, 361 N.W.2d 224, 227 (N.D.1985).

[¶ 10] A citizen informant is “someone who volunteer[s] information, [does] not want anything in return for the information, and [is] not at risk or in fear of going to jail.” State v. Rangeloff, 1998 ND 135, ¶ 4, n. 3, 580 N.W.2d 593. “We have recognized that citizen informants are presumed reliable, and that their reliability should be evaluated from the nature of their report, their opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation.” State v. Frohlich, 506 N.W.2d 729, 733 (N.D.1993) (citations omitted).

[¶ 11] Generally, a confidential informant is known to the police officer, but his or her identity is concealed from the magistrate. See, e.g., State v. Dymowski, 458 N.W.2d 490, 496 (N.D.1990) (noting, “[t]he informant ... is confidential, unknown to the magistrate issuing the warrant, but known by [the agent], who could and did vouch for his reliability and veracity”). Id. “A named ‘citizen informant’ differs significantly from a ... confidential informant whose identity is being protected.” Ronngren, 361 N.W.2d at 227. However, while a confidential informant does not enjoy the same presumed reliability as a citizen informant, he or she is still considered more reliable than an anonymous informant. Indeed, we have previously stated that “[t]he most reliable tip is ... one relayed personally to the officer.” State v. Miller, 510 N.W.2d 638, 640 (N.D.1994).

[¶ 12] An anonymous informant is one unknown to both the investigating officer and the magistrate. We have stated within the context of anonymous informants that an “ ‘informant must supply information from which one may conclude that the informant is honest and his information is reliable, or from which the informant’s basis of knowledge can be assessed.’ ” State v. Hage, 1997 ND 175, ¶ 17, 568 N.W.2d 741 (quoting Woehlhoff v. State, 487 N.W.2d 16, 18 (N.D.1992)) (citing State v. Thompson, 369 N.W.2d 363, 367 (N.D.1985)).

[¶ 13] Roth incorrectly applies the standard for evaluating an anonymous informant’s tip when he argues the tip should have been disregarded because Deputy Bitz failed to independently verify the informant’s reputation for truthfulness or verify the accuracy of the informant’s tip through corroboration or independent investigation. In this case, if the informant were anonymous, corroboration might have been required:

“If the informant does not supply the information necessary to evaluate the tip, the police must, through independent investigation, corroborate the tip or develop other sources of information leading to the conclusion that evidence of a crime will probably be found in a particular place.”

Rage, at ¶ 17 (quoting Woehlhoff, 487 N.W.2d at 18). However, because the'informant was confidential, i.e. known to the officer, a higher degree of reliability attaches. This case is similar to Dymowski, in which we upheld the magistrate’s finding of probable cause based on a confidential informant’s tip because the police officer “could and did vouch for [the confidential informant’s] reliability and veracity.” Dymowski, 458 N.W.2d at 496. Here, Deputy Bitz effectively vouched for the confidential informant’s reliability and veracity in his supporting affidavit. The informant’s veracity and reliability were evaluated in light of his past contact with law enforcement. Deputy Bitz’s affidavit set forth the basis for his belief that the informant’s information was reliable by stating the informant had provided reliable information in the past that had been independently corroborated and resulted in successful state and federal prosecutions. Deputy Bitz also noted the confidential informant had recently provided information leading to the arrest of a narcotics trafficker and had provided reliable information related to other local drug traffickers that had been independently corroborated.

[¶ 14] Additionally, the confidential informant supplied detailed information regarding his knowledge of Roth’s manufacture of methamphetamine in his home. He described Roth’s method of manufacture and provided minute details of the process he observed. See State v. Holzer, 2003 ND 19, ¶ 14, 656 N.W.2d 686 (observing, “[The informant’s] level of specificity in describing the drug activity that was taking place at the residence made it more likely that the information provided was accurate.”).

[¶ 15] The informant’s report of personal observations, combined with Deputy Bitz’s assertion that the informant had provided reliable information in the past, supports a finding of probable cause. The magistrate had a substantial basis to conclude there was a fair probability contraband or evidence of a crime would be found in Roth’s residence.

IV

[¶ 16] Roth argues the affidavit contained stale information and bare assertions that could not support a finding of probable cause. According to Roth, Deputy Bitz relies heavily on information of Roth’s previous misconduct, which does not support a finding of probable cause.

[¶ 17] Stale information of previous misconduct ‘“does not establish probable cause that similar or other improper conduct is continuing to occur.’ ” State v. Guthmiller, 2002 ND 116, ¶ 18, 646 N.W.2d 724 (quoting Ringquist, 433 N.W.2d at 213). In addition, “[s]ufficient information, rather than ‘bare bones’ information must be presented to the magistrate.” Thieling, 2000 ND 106, ¶ 11, 611 N.W.2d 861. In this case, the affidavit contained information more than three months old. The trial court noted that, while the information was old, it indicated ongoing criminal activity involving Roth and supported a finding of probable cause. Staleness is determined after reviewing the particular facts of each case, and “passage of time may be unimportant to the validity of probable cause when the course of conduct is of a protracted or continuous nature.” Damron, 1998 ND 71, ¶ 17, 575 N.W.2d 912. “Protracted and continuous activity is inherent in drug trafficking.” Ringquist, at 214. “Drug use can also be a habituating and continuing offense.” Hage, 1997 ND 175, ¶ 13, 568 N.W.2d 741. Deputy Bitz’s affidavit included information regarding two incidents in May 2002 involving searches of Roth’s vehicle and home that revealed indicia of drug trafficking, methamphetamine, and marijuana.

[¶ 18] The affidavit also contained information that Roth was currently facing trial on charges of possession of marijuana with intent to deliver, possession of methamphetamine, and possession of drug paraphernalia. The magistrate could properly consider this information in determining whether probable cause existed to support issuance of the search warrant. “A suspect’s reputation can support a determination of probable cause only when used in connection with other evidence.” Hage, 1997 ND 175, ¶ 23, 568 N.W.2d 741. In light of the other information contained in the affidavit, including the informant’s tip, prior searches, and Roth’s association with others suspected of drug use and trafficking, the information regarding Roth’s then current charges was properly before the magistrate.

[¶ 19] The affidavit also contained information regarding Roth’s suspected involvement with other persons suspected of drug use and trafficking. “Mere suspicion that persons visiting the premises are connected with criminal activity will not suffice for issuance of a warrant to search the premises.” Ballweg, 2003 ND 153, ¶ 23, 670 N.W.2d 490. Roth argues the State did not present any evidence Roth engaged in any illegal activity with suspected drug users. This Court has held the information regarding a suspect’s associations in connection with the other minimal evidence of drug activity was at most “a very thin layer” in the probable cause analysis. Thieling, at ¶ 12. However, the facts in this case are distinguished from those in Thieling. This case involves more than minimal evidence of drug activity. Because of the informant’s tip and the two prior searches revealing items indicating drug trafficking, a higher degree of suspicion attaches to Roth’s associations with persons suspected of criminal activity, notably, drug activity. See Ballweg, 2003 ND 153, ¶ 24, 670 N.W.2d 490. “Although this is a thin layer in the probable cause analysis, it could properly be evaluated in determining whether there was probable cause to search the premises.” Id.

[¶ 20] In addition, the affidavit stated that officers observed Roth’s roommate and suspected he used methamphetamine, based on sores on his face. “ ‘The courts must take into account inferences and deductions that a trained and experienced officer makes.’ ” Guthmiller, 2002 ND 116, ¶ 15, 646 N.W.2d 724 (quoting State v. Olson, 1998 ND 41, ¶ 24, 575 N.W.2d 649). The affidavit contained information constituting more than “bare assertions”:

We have warned that sufficient information, rather than a “bare bones” affidavit, must still be presented to the magistrate to allow that official to determine probable cause. That determination cannot be a mere ratification of the bare conclusions of others. We have often emphasized that an affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.

State v. Ennen, 496 N.W.2d 46, 50 (N.D.1993) (citations omitted). As demonstrated above, the underlying information Deputy Bitz provided in the affidavit is sufficient to support his assertion that probable cause existed to believe Roth was manufacturing methamphetamine in his home. Under the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed, based on the information set forth in the affidavit.

V

[¶ 21] Although the magistrate properly concluded probable cause existed to support the underlying search warrant, we do not believe probable cause existed to support the no-knock provision of the search warrant. Roth argues the no-knock search warrant was unreasonable because it was unsupported by exigent circumstances justifying the no-knock portion of the search warrant. Roth further argues issuance of the warrant violated his right against unreasonable searches and seizures, requiring suppression of the seized evidence.

[¶ 22] Under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the North Dakota Constitution, all searches and seizures must be reasonable. Officers generally must knock and announce their presence before entering a dwelling. State v. Herrick, 1997 ND 155, ¶ 17, 567 N.W.2d 336 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)). However, the reasonableness requirement is flexible and the countervailing law enforcement interests may dispense with the knock and announce requirement before entry. Id. at’ ¶ 17. Officers may validly enter without knocking and announcing their presence when there is a threat of physical violence or possible destruction of evidence. Id.

[¶ 23] North Dakota law requires that probable cause must be demonstrated before a no-knock search warrant may be issued. N.D.C.C. § 19-03.1-32(3). No-knock search warrants are authorized under N.D.C.C. § 19-03.1-32(3), which provides:

Any officer authorized to execute a search warrant, without notice of the officer’s authority and purpose, may break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or magistrate issuing the warrant has probable cause to believe that if such notice were to be given the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, and has included, in the warrant a direction that the officer executing it is not required to give such notice.

Probable cause determinations must be made after reviewing the facts presented in a particular case. State v. Van Beek, 1999 ND 53, ¶ 15, 591 N.W.2d 112. “[I]t is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

[¶ 24] Deputy Bitz’s affidavit failed to provide any evidence that knocking and announcing may have placed the officers or others in danger. Deputy Bitz’s affidavit failed to set forth exigent circumstances supporting issuance of the no-knock provision of the search warrant. Deputy Bitz’s affidavit purports to support a no-knock provision because the search of Roth’s vehicle revealed a loaded .45 caliber magazine clip. Roth later informed law enforcement that the magazine clip belonged to a gun located at Roth’s residence. “A reasonable belief that firearms may be within the residence, standing alone, is clearly insufficient to justify excusing the knock and announce requirement.” State v. Hughes, 1999 ND 24, ¶ 7, 589 N.W.2d 912- (relying on United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.1993)). Therefore, the trial court correctly found probable cause did not exist to support issuance of the no-knock provision. There was no substantial basis for the magistrate’s conclusion that probable cause existed for the no-knock authorization. The no-knock authorization was issued in violation of N.D.C.C. § 19-03.1-32(3).

VI

[¶ 25] Roth argues the entire search warrant was invalid because the no-knock provision is defective. Roth suggests all four corners of the affidavit must be used in determining probable cause and, because irrelevant information is contained within those four corners, the entire search warrant should be deemed defective. We have never held that support for a search warrant must come from all four corners of an affidavit, in the sense that the search warrant must contain only relevant information within those four corners. Roth’s argument is misplaced. Irrelevant information within the affidavit will not negate a finding of probable cause if there is also sufficient information within the affidavit to support a finding of probable cause. See Ballweg, 2003 ND 153, ¶ 25, 670 N.W.2d 490.

[¶ 26] Probative and non-probative information may be contained in an affidavit for a search warrant. It is the duty of the magistrate to filter out the non-probative information and examine the remaining information to determine whether probable cause exists. Mere existence of irrelevant information, leading to the issuance of a defective no-knock provision, will not invalidate the underlying search warrant, if it is based on probable cause.

[¶ 27] Roth argues the trial court erroneously found the officers did not use the no-knock provision because they realized it was defective. Roth further contends there is no evidence or testimony supporting the trial court’s finding. The State argues a suppression hearing was held March 12, 2003, and Roth failed to provide this Court with a transcript of the proceedings. “ ‘[F]ailure to provide a transcript may prevent a party from being successful on appeal.’ ” State v. Clark, 2001 ND 194, ¶ 5, 636 N.W.2d 660 (quoting Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984)). Although we are unable to fully review this issue, we find such review unnecessary. This review might be helpful if we were required to determine whether the trial court properly applied the good-faith exception to the exclusionary rale. However, this issue is not before us.

[¶ 28] The operative fact in this case is the officer’s failure to utilize the no-knock provision, regardless of the motive for such failure. The trial court properly concluded probable cause did not exist to support the no-knock provision of the search warrant. The State does not dispute this. However, probable cause existed for the search warrant itself. Once Deputy Bitz functionally excised the no-knock provision by not using it, the rest of the search warrant was valid.

Because the officers knocked and announced their entry ... the factual situation is the equivalent to one in which a search warrant is executed pursuant to a warrant without a no-knock provision. Consequently, if the magistrate properly found probable cause to issue the warrant, the evidence should not be suppressed.

State v. Anhalt, 630 N.W.2d 658, 662 (Minn.App.2001). The trial court properly denied Roth’s motion to suppress evidence because the no-knock provision was not utilized when the search warrant was executed. A trial court’s decision on a motion to suppress will be affirmed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Heitzmann, 2001 ND 136, ¶8, 632 N.W.2d 1. However, we note the trial court’s reliance on the good-faith exception to the exclusionary rule is unnecessary. The good-faith exception to the exclusionary rule only applies under certain circumstances when a search warrant is found to be invalid. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (stating “[t]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable rebanee on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”). Here, the search warrant was valid because the officer’s actions functionally excised its invabd portion.

YII

[¶ 29] The trial court did not err in denying Roth’s motion to suppress evidence, therefore, we affirm.

[¶ 30] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.


source: Caselaw Access Project

author: SANDSTROM, Justice. VANDE WALLE, Chief Justice,

license: Public Domain

text:
    2004 ND 31
    MORTON COUNTY SOCIAL SERVICE BOARD as assignee for Karen Hall, Karen Hall, and S.H., minor child, by and through her guardian, Karen Hall, Plaintiffs Karen Hall, Plaintiff and Appellant v. Thane SCHUMACHER, Defendant and Appellee.
    No. 20030226.
    Supreme Court of North Dakota.
    Feb. 2, 2004.

      Kent M. Morrow of Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.
    Sherry Mills Moore, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Karen Hall is appealing a South Central Judicial District Court judgment awarding custody of S.H. to Thane Schu-macher. Hall argues the district court erred in finding no domestic violence had occurred to trigger the presumption against awarding custody to Schumacher. She also argues the district court erred in finding that several factors under the “best interests of the child” analysis favored Schumacher. We affirm, concluding the district court did not err in finding no domestic violence presumption and in finding the “best interests of the child” analysis favored Schumacher.

I

[¶ 2] Hall and Schumacher are the parents of S.H., born in 2001. Hall and Schu-macher never married. On January 29, 2002, the Morton County Social Service Board, Hall, and S.H. filed a complaint seeking reimbursement of child support from Schumacher. On February 11, 2002, Schumacher filed his answer and counterclaim, seeking custody of S.H. A custody trial was held on May 22-23, 2003.

[¶ 3] At the time of trial, Hall lived in Mandan and had held various jobs, having worked as a maid, an assembly worker, a waitress, and an exotic dancer. She has a General Education Diploma (“GED”) and testified she has looked into continuing her education at Bismarck State College. She was twenty-five years old at the time of trial and has another child, J.G., age six, who resides with her:

[¶ 4] At the time of trial, Schumacher was employed as a licensed day-care provider, operating a twenty-four hour day care, seven days a week in Mandan, North Dakota. He has taken classes in nutrition, cardiopulmonary resuscitation, and first aid. He was twenty-one years old at the time of trial. Schumacher has a GED and testified that he enrolled in Bismarck State College for the fall 2003 semester.

[¶ 5] Testimony at trial shows SiH. developed several complications after she was born, including pyloric stenosis, a condition in which the stomach closes and food cannot get through; torticollis, a condition in which the head tips to one side; and respiratory syncytial virus. S.H. resided with Hall full time until June 2002, when an interim order allocated physical custody of S.H. between the parties. On June 5, 2003, the district court issued its memorandum decision and order finding the “best interests of the child” analysis favored Schumacher, and awarded him custody of S.H. Judgment was entered on June 10, 2003.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under ■ N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 7] Hall argues the district court erred in finding that no domestic violence had occurred to trigger the presumption against awarding custody to Schumacher under N.D.C.C. § 14-09-06.2(l)(j). Hall argues an incident involving a computer and an ax was domestic violence. She argues, because a dangerous weapon was used, the district court misinterpreted the statute defining domestic violence.

[¶ 8] A district court’s finding on domestic violence is a factual determination that will not be reversed unless clearly erroneous. A statutory interpretation, however, is a matter of law, fully reviewable on appeal. Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151.

[¶ 9] Under N.D.C.C. § 14-09-06.2(l)(j)':

If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence.

[¶ 10] Domestic violence “includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.” N.D.C.C. § 14-07.1-01(2) (emphasis added).

[¶ 11] Use of a dangerous weapon without domestic violence is not enough to create a rebuttable presumption. The statute is clear that there must be a finding of domestic violence and an incident of domestic violence involving the use of a dangerous weapon.

[¶ 12] During trial, disputed testimony was presented as to the incident involving Hall and Schumacher. Hall testified Schu-macher got mad at her. She claims he took an ax and slammed it into his computer and told her that if she had not been pregnant, he would have used the ax on her. She testified she called the police and the police arrested him. She said that she and her son stayed in the bathroom until the police got there and that the door was hit by the ax. Hall testified Schu-macher was arrested. She testified the parties ended their relationship shortly after this incident.

[¶ 13] Schumacher testified the couple were fighting over who should get the car and who should get the computer. He testified he put a hole in the corner of the computer screen because he figured she would try to take the computer. He testified he did not shatter the computer. His testimony makes no mention of hitting the bathroom door, and he claims he did not swing the ax. He testified Hall was on the other side of the room and J.G. was in the bathroom during the incident. He testified he was arrested for disorderly conduct, not domestic violence.

[¶ 14] The district court found:

Two incidents were presented to the Court regarding domestic violence. The first incident occurred when the two parties lived together. During an argument [Schumacher] used an axe to destroy the computer, which was the issue of the argument. Police were called, [Schumacher] was taken into custody. [Schumacher] was released back to the home that night and [Hall] indicated she was not afraid of [Schumacher]. [Schu-macher] was convicted of disorderly conduct and did complete anger management classes as part of this incident. The evidence does not indicate [Schu-macher] threatened [Hall]. The act was inappropriate and [Schumacher] has followed through on the consequences of the act. The Court does not find this to be domestic violence.
The second act is alleged to have occurred at Ms. Pinks’s residence. [Hall] alleges [Schumacher], while playing a game grabbed her, injured her neck and drug her down some stairs. Ms. Pinks testified to this incident. Ms. Pinks’s testimony is discounted due to inconsistencies. [Schumacher] admits the incident occurred, but any injury was accidental and not as extensive as alleged by [Hall]. [Hall’s] claim of injuries is suspect as she did not seek immediate treatment for the alleged injuries. The Court does not find this to be domestic violence.

[¶ 15] Although Hall testified Schumacher told her he would have used the ax on her if she had not been pregnant, she said that statement was made a little bit later. When she was asked how much later, she explained it was made after the baby had been born and not at the time of the incident. Linda Hawley, Schumacher’s mother, testified that on the night of the ax incident, Hall agreed Schumacher would not hurt her. Schumacher testified Hall told police he did not threaten her. Hall did not recall having told this to the police. Schumacher also testified Hall admitted she called the police because she was mad and Hall told him she was not afraid of him. Hall claims she did not tell police she was not afraid and claims she was afraid of Schumacher. Hall allowed Schumacher back into the home that evening, however, and did not file a protection order.

[¶ 16] “A choice between two permissible views of the evidence is not clearly erroneous.” Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D.1995). We respect the opportunity of the trial court to weigh the credibility of the witnesses. Id.; N.D.R.Civ.P. 52(a).

[¶ 17] The district court considered the conflicting testimony of Hall and Schu-macher regarding the alleged incident of domestic violence and determined no domestic violence had occurred. The court also found no bodily harm or injury had occurred or any infliction of fear of imminent physical harm. The district court found the evidence did not show that Schu-macher was threatening Hall or that Hall was afraid of Schumacher. The district court’s findings of fact are supported in the record.

[¶ 18] In similar circumstances involving destruction of property, this Court has found evidence of domestic violence insufficient to raise any presumption under the statute. See Ryan, 533 N.W.2d at 923-24 (father’s acts of breaking flower pot and pulling phone off the wall, which produced no actual injury to household members, were insufficient to raise domestic violence presumption). See also Holtz v. Holtz, 1999 ND 105, ¶ 29, 595 N.W.2d 1 (no domestic violence when a knife was used to slash car tires).

[¶ 19] We conclude the district court did not misinterpret the statute by failing to find that use of a dangerous weapon, by itself, constituted domestic violence. We also conclude the district court’s finding of no domestic violence was not clearly erroneous. Although we conclude this particular incident involving the ax was not domestic violence, under other circumstances, destroying property with an ax could be domestic violence. On the other hand, had the district court found domestic violence had occurred, sufficient facts exist in this case to rebut the presumption against awarding custody to Schumacher.

[¶ 20] Clear and convincing evidence to rebut the presumption may require the accused to demonstrate why custody with the accuser is not in the child’s best interests. Zuger v. Zuger, 1997 ND 97, ¶ 31, 563 N.W.2d 804.

[¶ 21] In this case, the court found none of the “best interests of the child” factors favored Hall. The findings of the district court explain in detail why the interests of S.H. would be better served in Schumacher’s custody. Further, Schu-macher has undergone anger management classes.

[¶ 22] The district court did not err in finding no domestic violence had occurred.

Ill

[¶ 23] Hall also argues the district court erred in finding several factors under the “best interests of the child” analysis favored Schumacher.

[¶ 24] We will not set aside a custody award unless it is clearly erroneous. Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196. “A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made.” Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

[¶ 25] The district court is in a better position to evaluate testimony, because it observes the demeanor and credibility of the witnesses. Corbett v. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312. If the court’s decision is supported by evidence in the record, we do not retry custody issues or reassess the credibility of witnesses. Id. We will not reverse the district court’s findings merely because we view the evidence differently, and a choice between permissible views of evidence is not clearly erroneous. Id.

[¶ 26] A district court must consider all the factors in N.D.C.C. § 14-09-06.2(1) and base its decision on the best interests and welfare of the child. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196.

[¶ 27] Section 14-09-06.2(1), N.D.C.C., provides:

For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a re-buttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶28] A separate finding is not required for each factor under N.D.C.C. § 14-09-06.2(1), but the district court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court’s decision. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196.

[¶ 29] In considering the factors specified by N.D.C.C. § 14-09-06.2(1), the district court found factor (a) slightly favored Schumacher and factors (b), (c), (d), (e), (f), (g), (k), and (m) favored Schumacher.

A

[¶ 30] Hall argues the district court erred in finding factor (a) favored Schumacher. She argues the court failed to explain how or why Schumacher was favored. She argues the district court referred to the testimony provided in court and the custody investigator’s report. She argues that referring to the report was an improper delegation of authority to the custody investigator. Hall cites Owan v. Owan, which states an independent investigator’s report cannot be the conclusive basis of the court’s decision regarding the custody of the children, because the trial court cannot delegate its power to decide questions of child custody. 541 N.W.2d 719, 722 (N.D.1996).

[¶ 31] Although the district court referred to the custody investigator’s report, it did not make the report the conclusive basis for its decision. In fact, the custody investigator had found the parties equal on factor (a). The district court also referred to testimony at trial as a basis for its decision.

B

[¶ 32] Hall argues the district court erred in finding factor (b) favored Schu-macher. She argues the court should have found equally for both parents and the court improperly considered her relationship with her son.

[¶ 33] The district court found:

The evidence at trial favors [Schumacher] in this category. [Hall], for different reasons, has failed to get [S.H.’s] stepbrother to school on multiple occasions. [Hall] is not prompt with dropping off or picking up [S.H.]. [Schumacher] is very structured in the care of [S.H.] to include the follow through with medical appointments and therapy. [Hall] attempts to follow through, but needs continued guidance on what is appropriate in [S.H.’s] care.

[¶ 34] The district court mentions Hall’s relationship with her son, but focuses on each party’s relationship with S.H. in determining each one’s disposition and capacity to provide love, affection, and guidance and to continue her education. Hall’s lack of follow-through with appointments and therapy and her inability to promptly drop off and pick up S.H. show why Schumacher is favored in this category.

C

[¶35] Hall argues the district court erred in finding factor (c) favored Schu-macher. She argues the court focused on her financial resources and not on her willingness to provide material goods and services to her child.

[¶ 36] The district court found:

Evidence favors [Schumacher] on this issue. [Schumacher] has developed employment, together with his mother, of a day care run out of his home. [Schu-macher] is able to be present with [S.H.] during the work day due to this arrangement. [Schumacher] has made progress in arranging to attend school at BSC. [Hall] has not been working and has lost certain benefits provided by the State due to her boyfriend moving into her household. The boyfriend only began working the first day of trial. [Hall] has not been able to follow through with medical appointments and continue therapy either at home or with medical professionals. [Schumacher] provides for [S.H.] and continues to help her medical issues improve by assisting in therapy at home and insuring [S.H.] makes medical appointments.

[¶ 37] As evidenced by the district court’s findings, this factor was not found solely on financial ability. The fact that Hall lost benefits because her boyfriend moved in and the fact that she has not been able to follow through with medical appointments and therapy for S.H. demonstrate her unwillingness to provide for her child.

D

[¶ 38] Hall also argues the district court erred in finding factor (d) favored Schumacher. She claims the district court favored Schumacher on this factor because he owned a house and she resided in a mobile home. She also argues the district court failed to assess whether S.H. was happy living with Hall before disturbing the living arrangement.

[¶ 39] The district court found:

[Schumacher] is favored on this point. [Schumacher] lives in a home used for a day care. Not only adequate for [S.H.], the home provides an environment to be with other children and is subject to the rules and restrictions required of a day care home. [Schumacher] has been here since February of 2002. [Hall’s] home is a trailer with only two bedrooms. [S.H.] must either share a room or parties must sleep in the living room. The custody investigator provided that there were flies in the home and the temperature was warm. [Hall’s] boyfriend has three children from his current marriage and there is conversation that these children could live with [Hall] and her boyfriend. [Schumacher] has shown evidence of stability and is favored on this point.

[¶ 40] The district court’s findings demonstrate it considered more than Schumacher’s house versus Hall’s mobile home in making its decision. The district court looked at the environment where S.H. would be living.

[¶ 41] Hall further argues the district court inappropriately relied upon the investigator’s report regarding flies and the temperature in her mobile home. She claims testimony at trial indicated these concerns were addressed. After reviewing the record, we conclude the district court’s findings are supported and are not clearly erroneous. An updated report indicated window air conditioners were purchased; however, there is no mention about the flies.

E

[¶ 42] Hall also argues the district court erred in finding factor (e) favored Schumacher. She argues it improperly considered her relationship history without finding a harmful effect on S.H. Factor (e) focuses on the child’s prospects for a stable family environment. Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142.

“The stability of a child’s home can be undermined in various ways. This might include frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic companions for the custodial parent, or other potential disruptions. Of course, every situation needs to be examined individually.”

Id. (quoting Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686, 690 n. 9 (1996)).

[¶ 43] We conclude the district court appropriately considered Hall’s relationship history under this factor.

F

[¶ 44] Hall also argues the district court erred in finding factor (f) favored Schumacher. She argues the court equated morality with maturity and failed to find any effect on S.H. The district court found:

[Schumacher] is favored on this point. Both parties were, and are young adults since the birth of [S.H.]. Both parties carry baggage of problems from younger days. From the evidence at trial, [Schumacher] has made great leaps in maturing and taking on responsibility for his own life and [S.H.’s]. [Hall], although showing some improvement, does not appear to have realized the steps necessary to move forward in making positive choices and taking positive steps to improving her life and her children[’]s. [Hall] makes statements of wanting to make changes, but fails to follow through with any positive steps. Evidence was provided that [Hall] still on occasion dances for money.

[¶ 45] Hall misconstrues the district-court’s finding. Matürity was just one of the factors used to determine the moral fitness of both parties and was not equated with morality as Hall argues.

G

[¶ 46] Hall also argues the district court erred in finding factor (g) favored Schumacher. She argues the district court failed to explain how maturity affected the mental or physical fitness of either parent and no determination was made on how this-affected S.H.’s interests.

[¶ 47] An actual adverse effect need not be demonstrated before health can be considered in making a custody award. McDowell v. McDowell, 2001 ND 176, ¶ 24, 635 N.W.2d 139. This Court has stated, however, “[w]hile an actual adverse effect need not be demonstrated before health can be considered in making a custody award, more than conjecture and speculation is required.” . Id. The district court found that Schumacher was favored on this issue only in regard to evidence of maturity at this time. Maturity of the parties can affect their disposition to provide a child with food, clothing, and medical care. Heck v. Reed, 529 N.W.2d 155, 162 (N.D.1995). We conclude the district court’s findings are supported in the record and are not clearly erroneous.

H

[¶48] Hall also argues the district court erred in finding factor (k) favored Schumacher. She argues the court failed to consider whether S.H.’s interests would be significantly affected. She also argues the court relied too heavily on the custody investigator’s finding that her relationship with her boyfriend was adverse to S.H.’s interests. She claims the court erred because it considered her boyfriend’s relationship with the children.

[¶ 49] The district court found:

[Schumacher] is favored on this point. The Court from evidence and the custody investigator’s report, finds [Hall’s] relationship with her boyfriend adverse to the best interests of [S.H.]. Evidence shows the boyfriend is less than helpful with the children, and his non-employment status and his inability to drive does not help in any equation for assisting [Hall] with her children.

[¶ 50] Hall’s boyfriend resides in her home. The statute specifically authorizes an inquiry into his interactions and interrelationship with S.H. Furthermore, this Court has concluded, it is appropriate to consider the opinion of the custody investigator, and it is within the district court’s discretion to assign the weight given to such evidence. See Hogan v. Hogan, 2003 ND 105, ¶ 10, 665 N.W.2d 672. We conclude the district court’s findings were supported by the record and were not clearly erroneous.

I

[¶ 51] Finally, Hall argues the district court erred in finding factor (m) favored Schumacher. She argues the court relied upon her progress with the other factors. The district court considered the parties’ progression away from their troubled backgrounds. The court found Schumacher has grown more and has taken advantage of more opportunities to benefit himself and S.H.

[¶ 52] Under factor (m), the court can consider any other factor it deems relevant. N.D.C.C. § 14-09-06.2(l)(m). The district court did not err in considering the parties’ progression away from their troubled youths and their dispositions to make appropriate choices for themselves and S.H.

[¶ 53] The district court’s findings are supported in the record and enable us to understand the factual basis for the court’s decision, and we are not convinced a mistake has been made. We conclude the district court did not err in determining that Schumacher should have custody of S.H.

[¶ 54] We affirm, concluding the district court did not err in finding no domestic violence had occurred and in awarding Schumacher custody of S.H.

[¶ 55] WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ„ and EVERETT NELS OLSON, Surrogate Judge, concur.

[¶ 56] The Honorable EVERETT NELS OLSON, Surrogate Judge, sitting in place of MARING, J., disqualified.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 57] I believe the use, in anger, of an ax to smash a piece of furniture or a computer before a spouse or other family member is, as a matter of law, an intent to inflict fear. Cf. Ryan v. Flemming, 533 N.W.2d 920, 925 (N.D.1995) (Levine, J., concurring specially) (observing that trial court’s finding that smashing a flower pot and ripping a phone from the wall were not sufficient to raise presumption under the statute meant the trial court implicitly found outbursts were not intended to inflict fear of imminent physical harm or bodily injury even though there was testimony they did so). The finding of imminent fear should not be solely dependent upon the subjective state of the spouse or family member. Cf. City of Bismarck v. Schoppert, 469 N.W.2d 808, 814 (N.D.1991) (VandeWalle, J., concurring specially) (observing jury need not accept witnesses’ characterization of feelings that they would not be incited to violence any more than it would have to accept witnesses’ claims that they were incited to an immediate breach of the peace).

[¶ 58] Furthermore, the reason for the statutory presumption is obvious:

Children learn their value systems from their parents, society, and the adults around them. Evidence shows that young men and women in abusive homes are learning to be the next generation of batterers and victims. A great majority of abusive husbands grew up in homes where they witnessed their fathers abuse their mothers.
Children from violent homes learn the value of physical domination. They learn that the bigger and stronger they become, the more control they can exert over others. Children learn from example that they get results with physical violence. They learn that men are strong and that children and women can be victimized.

Ruth Jenny & Kelly Gaines Stoner, Domestic Violence and the North Dakota Best Interests Statute, 72 N.D. L.Rev. 1011, 1019 (1996) (footnotes omitted).

[¶ 59] I am concerned a child learns to emulate an act of violence notwithstanding another family member testifies they were not placed in imminent fear.

[¶ 60] An ax is not a flower pot. However, as this Court noted in Holtz v. Holtz, 1999 ND 105, ¶ 29, 595 N.W.2d 1, in declining to overturn the trial court’s finding that the slashing of tires was not domestic violence, “more important ... any presumption against custody arising ... from the incidents of domestic violence was rebutted by the same factors that necessitated the change of custody.”

[¶ 61] Here too, as the majority opinion discusses, there is more than clear and convincing evidence that placing custody of the child with Hall is not in the child’s best interests. For that reason I concur in the result reached by the majority opinion.

[¶ 62] GERALD W. VANDE WALLE, C.J.


author: PER CURIAM.

text:
    2004 SD 5
    The PEOPLE of the State of South Dakota in the Interest of S.M.D.N and C.P.N., Minor Children and Concerning P.A.N., P.S. and The South Dakota Department of Social Services.
    No. 23089.
    Supreme Court of South Dakota.
    Considered Jan. 8, 2004.
    Decided Jan. 9, 2004.
    P.S., Boise, Idaho, pro se appellant.
    Lawrence E. Long, Attorney General, Ann Holzhauser, Assistant Attorney General, Pierre, Attorneys for appellee state.
    Staci Reindl, Lead, Attorney for appel-lees children.
   PER CURIAM.

[¶ 1.] In this abuse and neglect case, P.S., a father whose parental rights to two children were terminated, attempts to appeal from an order of the circuit court that dismissed his motion for reconsideration. Because a denial of a motion for reconsideration is not an appealable order in its own right, this Court is without jurisdiction to review that order and the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Appellant P.S. had his parental rights terminated to his two children by the circuit court on January 17, 2001. That order was appealed and this Court summarily affirmed the judgment of the circuit court in appeal # 22339 on December 16, 2002. On January 21, 2003, P.S. filed a motion for relief from that judgment with the circuit court. That motion was dismissed by the circuit court on February 19, 2003. Thereafter, in a second appeal, # 22822, we again summarily affirmed the judgment of the circuit court in an order and judgment entered October 14, 2003. P.S. then filed a motion with this Court for reconsideration of that decision which was denied on November 3, 2003.

[¶ 3.] Undeterred by all this, P.S. went back to the circuit court and made a “motion to reconsider ruling that adoption is the least restrictive placement option.” The circuit court entered an order on December 10, 2003, dismissing this motion on the basis that the judgment in this case had already been appealed and summarily affirmed by this Court. P.S. attempts to appeal the order denying his motion for reconsideration.

ISSUE

[¶ 4.] Whether the circuit court’s order dismissing the motion to reconsider is an appealable order.

[¶ 5.] “This Court has only ‘such appellate jurisdiction as may be provided by the legislature. The right to appeal is statutory and does not exist in the absence of a statute permitting it.’ ” State v. Reath, 2003 SD 144, ¶ 4, 673 N.W.2d 294 (quoting Dale v. City of Sioux Falls, 2003 SD 124, ¶ 6, 670 N.W.2d 892, 894). “The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record.” Double Diamond Construction v. Farmers Coop. Elev. Ass’n of Beresford, 2003 SD 9, ¶ 6, 656 N.W.2d 744, 746. We are required to take notice of jurisdictional questions whether presented by the parties or not. Id

[¶ 6.] P.S. had previously exercised his right to appeal the judgment of the circuit court terminating his parental rights to these two minor children. The current attempted appeal relates only to the circuit court’s order dismissing the motion to reconsider the prior order that termination of parental rights was the least restrictive alternative commensurate with the best interests of the children. This exact issue was addressed in appeal # 22339 and, as previously mentioned, the circuit court’s judgment in that matter was summarily affirmed. Accordingly, the circuit court dismissed the motion for reconsideration as this issue is clearly res judi-cata and P.S. has no legal footing to once again assert error.

[¶ 7.] Procedurally, an order dismissing a motion to reconsider entered by the circuit court does not create a new avenue for appeal. See SDCL 15-26A-3. A motion for reconsideration is not a separate and appealable order. Rather, it is “an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.” Breeden v. Nebraska Methodist Hospital, 257 Neb. 371, 598 N.W.2d 441, 444 (1999). The circuit court’s judgment in this matter has been appealed twice and affirmed. P.S. is without a legal basis for seeking a third attempt at an appeal based only on his filing a motion to reconsider part of that judgment. If this was not the case there would conceivably be no end to the litigation. This order is not a final and appealable order invoking this .Court’s appellate jurisdiction.

[¶ 8.] Appeal dismissed.

[¶ 9.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, and MEIERHENRY’ Justices, participating.


author: SABERS, Justice.

text:
    2004 SD 6
    Renee NORTON, Claimant/Appellant, v. DEUEL SCHOOL DISTRICT # 19-4, Employer and Appellee, and ASBSD (Work Comp Fund), Provider and Appellee.
    No. 22812.
    Supreme Court of South Dakota.
    Argued Nov. 19, 2003.
    Decided Jan. 14, 2004.

      Ronald L. Schulz of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, Attorneys for appellant.
    Karla L. Engle of Tieszen Law Office, Pierre, Attorney for appellees.
   SABERS, Justice.

[¶ 1.] Renee Norton filed a claim for worker’s compensation for an injury she received while snow skiing. The Department of Labor (Department) denied benefits, holding that she had not sustained a work-related injury. The circuit court affirmed and Norton appeals. We affirm.

FACTS

[¶ 2.] Every year, the students in the Deuel School District Future Farmers of America club (FFA) take a “fun trip.” In 2001, the students decided to use their trip to go skiing. The students held a fund raiser and their advisor, Jason Karels, made arrangements for the trip. Karels contacted a ski resort which agreed to give the club a group discount based on the understanding- that at least 20 students would be attending. As it turned out, only 13 or 14 students took the trip and there were extra lift tickets. Karels offered one of those tickets to the bus driver, Renee Norton. Norton accepted. Testimony at the hearing revealed that Norton decided to ski only after she was offered the free ticket. When he purchased the tickets, Karels did not include Norton in his calculations and gave her the ticket only because it would otherwise go to waste. While skiing, Norton fell down and sustained a torn ligament and a blood clot in her leg. Although she was able to drive the students home from the ski trip, Norton ended up having to miss work because of her injuries.

[¶ 3.] Norton is a full-time school bus driver for the Deuel School District (District). She has a regular route taking children to and from school. Drivers for the District also transport students to extra-curricular activities such as ball games, field trips and this ski trip. The drivers have a rotation based on their bus numbers that generally determines who will drive for the extra trips. When their bus number comes up, they are asked whether they would like to drive for that activity. Dan Tobin, the Transportation Manager and Norton’s supervisor, testified that the drivers are not required to accept the extra driving duties. The drivers are free to decline and they are not disciplined for doing so. When they accept the extra trips, the drivers are paid them regular rate for the time they are driving, but a different rate for the time they wait for students’ activities to end. During that “down time,” drivers are paid $25.00 for the first three hours and $5.00 per hour after that.

[¶ 4.] The District policy is that teachers and advisors are not to use the drivers as chaperones on activity trips unless it is first cleared through Tobin. Such pre-approval was not sought for this trip. Nonetheless, Norton asserts she was injured while supervising the students as they skied and that she was required to supervise the children by her job description and contract. She filed a worker’s compensation claim for the injuries she received while skiing. The Department denied her claim. Norton appealed to the circuit court which affirmed the determination that her injury was not work-related. Norton appeals raising one issue:

Whether Norton’s injury arose out of and in the course of her employment.

STANDARD OF REVIEW

[¶ 5.] In a worker’s compensation case, we review the agency’s decision in the same manner as the circuit court. Sopko v. C & R Transfer Co., Inc., 2003 SD 69, ¶ 7, 665 N.W.2d 94, 96. The circuit court’s decision is not presumed correct. Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262 (citing Appeal of Templeton, 403 N.W.2d 398, 399 (S.D.1987)). We give great weight to the agency’s findings of fact and inferences drawn from the facts. Id. (citations omitted). Our standard of review on factual issues is clearly erroneous, meaning we will reverse only if we are “definitely and firmly convinced a mistake has been committed.” Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). We review the agency’s determination of questions of law under the de novo standard of review. Id. (citing Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240) (additional citations omitted).

[¶ 6.] Whether Norton’s injury arose out of and in the course of her employment.

[¶ 7.] To recover under worker’s compensation, a claimant must prove by a preponderance of the evidence that she sustained an injury “arising out of and in the course of the employment.” SDCL 62-1-1(7); Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992) (additional citations omitted). The worker’s compensation scheme also requires that the claimant prove that employment or employment-related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment-related injury is and remains a major contributing cause of the disability, impairment, or need for treatment. SDCL 62-1-l(7)(a)-(b).

[¶ 8.] In order for an injury to “arise out of’ employment, the employee must show that there is a “causal connection between the injury and the employment.” Canal Insurance Co. v. Abraham, 1999 SD 90, ¶ 12, 598 N.W.2d 512, 516 (additional citations omitted). The Court has been careful to stress that the employment “need not be the direct or proximate cause of injury,” rather, it is sufficient if “the accident had its origin in the hazard to which the employment exposed the employee while doing [her] work.” Id. Therefore, to show that an injury “arose out of’ employment, it is sufficient if the employment 1) contributes to causing the injury; or 2) the activity is one in which the employee might reasonably be expected to engage; or 3) the activity brings about the disability upon which compensation is based. Grauel, 2000 SD 145 at ¶ 12, 619 N.W.2d at 263 (additional and internal citations omitted).

[¶ 9.] The phrase, “in the course of’ employment “refers to the time, place and circumstances under which the accident took place.” Phillips, 484 N.W.2d at 530 (quoting Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979)). An employee is considered within the course of employment if “[s]he is doing something that is either naturally or incidentally related to employment.” Id. We have also noted that an activity that was expressly or impliedly authorized by the contract or nature of employment falls within the course of employment. Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 21, 607 N.W.2d 596, 603.

[¶ 10.] We construe the phrase “arising out of and in the course of employment” liberally. Id. Therefore, application of worker’s compensation statutes is not limited solely to the times during which an employee is “actually engaged in the work that [she] is hired to perform.” Rohlck v. J & L Rainbow Inc., 1996 SD 115, ¶ 19, 553 N.W.2d 521, 526-27 (additional citations omitted).

[¶ 11.] Although different cases have stressed different parts of the analysis, both elements of the statute, “arising out of employment” and “course of employment,” must be present in all claims for worker’s compensation. However, while both elements of the statute must be analyzed independently, they are part of the general inquiry of whether the injury or condition complained of is connected to the employment. Therefore, the factors are prone to some interplay and “deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.” 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 29, 29-1 (1999).

[¶ 12.] Norton argues that the determinative inquiry is whether she could reasonably have been expected to ski on the activity trip. She asserts that she believed her job description required her to supervise the students even when they were away from her bus. She further argues that she was never informed that she was not expected to supervise the students. Based on these assertions, she concludes that she could reasonably have been expected to ski on the day in question and that her injury is compensable.

[¶ 13.] To support her assertions, Norton relies on her contract which provides in part that she was required:

To travel over the route as directed by the Transportation Manager and to stop at the stations as determined by the administration.
To exercise all proper care in protecting children from injury, exposure and harassment.
To maintain order among the children at all times when they are being transported to and from school and allow them to enter and leave the bus only at such places as shall be stipulated by the Transportation Manager and to report all cases of disobedience, improper conduct and speech, and in cases of tardiness.

(Emphasis supplied.) Norton relies on the emphasized language for her assertion that she was reasonable in believing that her job required her to ski that day. As a threshold matter, the language of this contract, taken in context, does not require that Norton supervise the students when they are away from her bus. The language makes clear that Norton is required to protect students from “injury, exposure or harassment” and to “maintain order” and “report cases of disobedience” while the children are under her care on the bus. There is nothing in the language to indicate that Norton’s responsibilities as emphasized in the contract require her to exercise those responsibilities when the students are engaged in their activities under the supervision of a teacher and/or advisor.

[¶ 14.] Norton concedes that on her regular school route, her supervisory duties end as soon as students leave her sight. She also acknowledges that on most activity trips, her sole responsibility is to drive the students safely. For example, she has no supervisory duties while she waits for the students during ball games or academic competitions. She nonetheless asserts that on this trip, she believed she was responsible for supervising the students while they were skiing. As the ALJ found, her testimony on this issue was “inconsistent, evasive and not credible.”

[¶ 15.] First, Tobin testified that the only way a teacher is permitted to utilize a bus driver as a chaperone is when it is first cleared through him. Karels never requested that Norton act as a chaperone. Karels testified that he did not expect hér to be a chaperone and that she did not appear to be supervising the students while she skied that day. Norton conceded at the hearing that she was never asked to supervise the students, nor did she inform Karels that she would be supervising the students. Even assuming that Norton was supervising the students, there is no indication that this was a duty she was expected to perform in the normal course of her job. At best, Norton would have been voluntarily or gratuitously supervising the students. This would still be non-compensable as we have held:

Actions or activities performed by an employee beyond the course .of the express or implied contract of employment do not create an obligation on the part of the employer to compensate the employee for injuries which may result.

Rohlck, 1996 SD 115, ¶ 9, 553 N.W.2d at 525 (citing Schumacher v. Schumacher, 67 S.D. 46, 288 N.W. 796, 797 (1939)).

[¶ 16.] Second, in approximately ten years as a bus driver for the district, there is only one documented activity trip where Norton acted as a chaperone. In that case, as per the policy, it was first cleared through Tobin.

[¶ 17.] Third, in her testimony, Norton acknowledged that generally the “down time” on an activity trip is considered personal time for the driver and that she is free to do as she pleases during those hours. On other activity trips, Norton has used the time to shop, visit family or run personal errands. Tobin corroborated that testimony and further testified that he had not expected her to ski that day.

[¶ 18.] Fourth, in her deposition testimony, Norton indicated that she never intended to ski until Karels offered her the free lift ticket. In fact, she told Karels on the drive to the resort that she did not intend to ski because the cost of the ticket would use up most of the money she would earn driving that day. This directly contradicts her testimony that she believed she needed to be on the slopes to supervise the students.

[¶ 19.] There is simply nothing in the record other than Norton’s contradictory testimony to support her argument that she was expected to supervise the students while skiing. We accept the Department’s finding that “Norton’s assertion that she was responsible for supervising students away from the bus is not reasonable in light of the balance of evidence in the record, consisting of her written contract, her written job description, the testimony of her supervisor [ ], and the teacher and FFA advisor that accompanied her on the FFA trip in question.” Tobin’s testimony that he must approve in advance the drivers acting as chaperones was found credible by the Department. This testimony, coupled with the fact that no such approval was sought or obtained, defeats Norton’s argument that skiing that day was an activity she was required to perform. Norton has failed to establish that the Department’s determination that she could not reasonably have been expected to ski on the day in question was error.

[¶ 20.] Norton relies heavily on Piper v. Neighborhood Youth Corps, 90 S.D. 443, 241 N.W.2d 868 (1976) and Krier v. Dick’s Linoleum Shop, 78 S.D. 116, 98 N.W.2d 486 (1959). In Krier, the employer left the claimant in a town that was not his town of residence to finish a job. The employer supplied the employee money for food and lodging. After the employee finished his work for the day, he drove to a restaurant approximately 2 miles out of town to have supper. While on the way back to his hotel, the employee was injured in a car accident. This Court noted that “the ‘course of employment’ of an outside employee is necessarily broader than that of an ordinary employee. His work creates the necessity of staying at hotels, eating at various places and of travel in going to and returning from those places.” Krier, 78 S.D. at 119, 98 N.W.2d at 488.

[¶ 21.] Krier extended the definition of “ ‘arising out of and ‘incident to’ employment to those activities necessary to the continuation of an employee’s duties, e.g., those activities ‘necessary to [the employee’s] health and comfort.’ Id. Examples of such activities include eating, resting, smoking or using bathroom facilities. Therefore, unless the employee ‘steps aside’ from their employment for personal reasons, they are allowed compensation for injuries they receive.” Id., (quoting Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786, 32 S.E.2d 816, 819 (1945)). An employee ‘steps aside’ from employment by doing such things as ‘attending a dance,’ or ‘robbing a bank’ or ‘other activities equally conceivable for his own pleasure and gratification.’” • Id. (Emphasis supplied.) We noted that “ordinarily none of these acts would be beneficial or incidental to [ ] employment.” Id.

[¶ 22.] By its own language Krier is distinguishable. Norton “stepped aside” from her employment purpose when' she went skiing. The evidence clearly indicated that she chose to ski for her “own pleasure and gratification.” The ALJ found that Norton decided to ski based on the personal motive of enjoying herself rather than on the belief that she needed to chaperone. Her choice to ski that day was not for the benefit of her employer. Norton failed to show that this finding was clearly erroneous, and we decline to extend the doctrine of Krier to the facts of this case.

[¶ 23.] Piper is distinguishable on the same grounds. That case involved an employee who drowned after falling asleep on a raft during his lunch break. When the employee fell asleep, the raft drifted out into the lake and he drowned attempting to swim back to shore. In that case, the employee was unable to leave the work site and was expected to take his break near the lake. The Department found that the employee could reasonably have been expected to take a rest on the raft during his lunch break. This Court affirmed on the basis that the Department’s decision was not “unsupported by substantial evidence.” Piper, 90 S.D. at 448, 241 N.W.2d at 870. Resting on a lunch break was a reasonably foreseeable act and fell within the law established in Krier. Norton has not shown that it was reasonably foreseeable that in her duties as a school bus driver, she would go snow skiing.

[¶ 24.] The facts of this case are more analogous to those cases where an employee is injured while “on call” for their employer. Norton was being paid on a different scale for the time during which the activity took place. Both she and her supervisor testified that the time between driving the children to and from the activity is “down time.” During that down time, she was permitted to do whatever she wished. She was responsible only for doing necessary maintenance on the bus. Like the “on-call” employee in Aadland, Norton was “not a captive of her employment premises because she was able to go where she pleased” on her down time and she was not on duty when she fell. Aadland v. St. Luke’s Midland Regional Medical Center, 537 N.W.2d 666, 669 (S.D.1995). In Aadland, we held that an employee who slipped on her employer’s parking lot during the time she was on call but not on duty had not received an injury arising out of her employment. We held that the employee had “failed to show that her injuries were caused by a hazard imposed upon [her] by reason of her employment greater than that to which the public generally [] was subjected.” Id. at 670. We noted that the employee had not been injured “by virtue of exposure to a risk inherent in her job duties [ ]; instead, she incurred an injury due to exposure to ‘risks common to all and not arising out [of] and in the course of employment.’ ” Aadland, 537 N.W.2d at 669. A torn ligament and blood clot caused by snow skiing is not a risk inherent in being a bus driver. On the contrary, a leg injury is a “risk common to all” who snow ski and did not “arise out of and in the course of [Norton’s] employment.”

[¶ 25.] Norton failed to establish that the Department erred in finding that snow skiing was not an activity in which she might reasonably be expected to engage. Furthermore, she failed to establish that her injury arose “in the course of employment” as there is no credible evidence that snow siding was either “naturally or incidentally related to employment” or an activity that was “expressly or impliedly authorized by the contract or nature” of her employment. Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The parties stipulated that Norton was performing her duties for the school district when she was transporting the students for this field trip.

      . Because we reject Norton's assertion that she was required to supervise the students while they were away from the bus, we need not reach the question whether such supervision necessarily required that she be on the ski slopes.
      It is noteworthy that the FFA advisor testified that it was easier to supervise the students from the ski chalet because from there, one could see most of the slopes.


author: WRIGHT, Judge.

text:
    In the Matter of the EXPULSION Of I.A.L. from Osseo Area Schools Independent School District No. 279.
    No. A03-762.
    Court of Appeals of Minnesota.
    Feb. 17, 2004.

      Michael C. Davis, St. Paul, MN, for relator I.A.L.
    Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Department of Education.
    Stephen M. Knutson, Michelle D. Ken-ney, Knutson, Flynn, Deans & Olson, Men-dota Heights, MN, for respondent Independent School District No. 279.

      Considered and decided by TOUSSAINT, Chief Judge, Presiding; LANSING, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

By writ of certiorari, relator challenges the order of respondent the Minnesota Department of Education, affirming relator’s expulsion by respondent school district. Relator argues that (1) a 29 day delay between the initial suspension and the initiation of expulsion proceedings violated the procedural due process guarantees of the United States Constitution and (2) there is insufficient evidence to support the commissioner’s decision. We affirm.

FACTS

On January 24, 2003,1.A.L. engaged in a fístfíght with another student, R.S.J., in the cafeteria of Brooklyn Junior High School. School employees Gretchen Jensen, Kendall Olson, Kristofor Rosenberg, and Dennis Wall were supervising the cafeteria when the fight began.. Upon seeing the girls fighting, the cafeteria supervisors moved toward the girls and repeatedly directed them to stop fighting. But the girls continued to fight. In an attempt to break up the fight, Jensen stepped between I.A.L. and R.S.J. I.A.L. hit Jensen and pulled out hair from Jensen’s head. When Jensen told I.A.L., “You’re not hitting her, you’re hitting me,” I.A.L. stopped fighting.

On the day of the fight, I.A.L. was suspended for five days. On January 29, the Osseo Area Schools Independent School District No. 279 (school district) notified I.A.L.’s parents that it was suspending I.A.L. for a second five-day period, effective February 3, and recommending expulsion of I.A.L. An attorney for the school district contacted I.A.L.’s parents on February 7 to review LAL.’s options in light of the recommendation for expulsion. I.A.L.’s mother expressed her intent to proceed with an agreement in lieu of expulsion. The school district faxed a copy of the agreement to LAL.’s mother on February 11 and did not commence expulsion proceedings. When contacted by the school district on February 25, I.A.L.’s mother advised that she wanted to confer with an attorney regarding the agreement. On March 3, I.A.L.’s attorney served a temporary restraining order on the school district and indicated that I.A.L. and her parents declined to enter into an agreement in lieu of expulsion.

Upon receipt of the- temporary restraining order, the school initiated expulsion proceedings and suspended I.A.L. for another five-day period, beginning March 5. On March 7, the school district served a notice of intent to expel I.A.L. for 12 months. An independent hearing officer conducted an expulsion hearing on March II. On March 18, the school board adopted.the hearing officer’s recommendation to expel I.A.L. for 12 months. I.A.L. appealed the decision to the Minnesota Department of Children, Families and Learning (MDE), the predecessor to the Minnesota Department of Education. The MDE affirmed the school board’s expulsion of I.A.L., and this appeal followed.

ISSUES

I. Did the delay between the incident giving rise to the expulsion and the initiation of expulsion proceedings violate 1.A.L.’s procedural due process rights?

II. Is the MDE’s decision supported by the record?

ANALYSIS

I.

I.A.L. argues that the 29-day delay between the fight with R.S.J. and the initiation of expulsion proceedings violated procedural due process rights guaranteed by the United States Constitution. As a question of law, we review de novo whether the procedure employed here was unconstitutional. Zellman ex rel. M.Z. v. Ind. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999), review denied (Minn. July 28, 1999).

It is well settled that a student’s entitlement to a public education is a property interest that is protected by the Due Process Clause of the United States Constitution and may not be taken away for student misconduct without adherence to the minimum procedures required by that clause. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). In Goss, the United States Supreme Court held that a suspension of up to 10 days is a “serious event” for a student and requires, at a minimum, notice and a hearing. Id. at 576-79, 95 S.Ct. at 737-38. “Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” Id. at 584, 95 S.Ct. at 741.

The Minnesota Pupil Fair Dismissal Act (PFDA) provides that “[n]o public

school shall deny due process ... to any [student] involved in a dismissal proceeding” leading to expulsion. Minn.Stat. § 121A.42 (2002); In re Expulsion of E.J.W., 632 N.W.2d 775, 780 (Minn.App.2001). When a suspension is imposed during the process of initiating an expulsion proceeding, the PFDA provides that the suspension period may not exceed 15 days. MinmStat. § 121A.41, subd. 10 (2002). But, unlike the laws of other states, the PFDA does not set a limitations period for initiation of expulsion proceedings after the alleged student misconduct. See, e.g., N.J. Stat. Ann. § 18A:37-2.1 (2002) (requiring immediate suspension of a pupil who assaults a teacher or administrator pending additional suspension or expulsion proceedings to commence within 30 calendar days after the initial suspension); Cal. Ed.Code § 48918(a) (2002) (requiring expulsion decision to be made within 30 days after student’s removal from school). As a matter of first impression, we consider whether the lapse of 29 days between the student’s initial suspension and the initiation of expulsion proceedings constitutes an unreasonable delay, in violation of a student’s right to procedural due process.

In Mathews v. Eldridge, the United States Supreme Court established the following factors for consideration when determining whether due process has been afforded:

First, the private interest ... affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); E.J.W., 632 N.W.2d at 780. Accordingly, we apply these factors to I.A.L.’s claim that her due process rights were violated.

The private interest affected by the school district’s expulsion procedure is I.A.L.’s right to an education, which is a protected property interest. See Goss, 419 U.S. at 574, 95 S.Ct. at 736. The school district’s action deprives I.A.L. of the right to attend school within the school district for one year from the date of the expulsion, which was 29 days after the initial suspension.

In determining whether the procedures used by the school district risked the erroneous deprivation of I.A.L.’s right to an education, we examine whether the delay in initiating the expulsion proceedings was caused by the school district’s procedures. The school district suspended I.A.L. for a total of 15 school days pending commencement of the expulsion proceedings. I.A.L. did not attend school for a period of 17 school days between the last day of the second suspension and the first day of the third suspension. During this 17-day period, the school district did not initiate expulsion proceedings because I.A.L., after receiving a proposal to settle the disciplinary action in lieu of expulsion, notified the school district that she intended to accept the settlement offer and asked for time to confer with an attorney about her decision. Two weeks after receiving the proposed agreement, I.A.L. rejected the settlement and notified the school district of her intent to exercise her right to an expulsion hearing. The school district then suspended I.A.L. again and initiated expulsion proceedings four days after I.A.L. rejected the settlement offer. Thus, the delay in initiating the expulsion proceedings is directly attributable to I.A.L.’s notification of an intent to settle in lieu of expulsion and request to confer with an attorney.

We find no fault in the school district’s procedures when the reason for the delay between the initial suspension and the initiation of the expulsion process was to honor LAL.’s request for time to confer with an attorney, in anticipation of not proceeding with an expulsion. Under the circumstances here, procedural safeguards requiring the school district to initiate the expulsion hearing notwithstanding a request for time to confer regarding a settlement offer pose the risk of both interfering with I.A.L.’s ability to seek the advice of counsel regarding her rights and alternatives to the expulsion and unnecessarily hindering the possibility of settlement.

In reaching our decision, we note that courts that have considered this issue in states with a maximum suspension period similar to that of the PFDA have concluded that a delay between the initial suspension and expulsion proceedings, comparable in length to the one at issue here, did not violate the student’s procedural due process rights. See Hernandez v. Sch. Dist. No. 1, 315 F.Supp. 289, 293-94 (D.Colo.1970) (holding that 25-day period between misconduct and initiation of expulsion proceedings during which the school district attempted resolution in lieu of expulsion was not an unreasonable delay); Madison Metro. Sch. Dist. v. Wis. Dept. of Pub. Instruction, 199 Wis.2d 1, 543 N.W.2d 843, 848 (App.1995) (holding that due process guarantees did not require expulsions to occur within the 15-day maximum suspension period). Similarly, a comparable delay between the initial suspension and the expulsion proceedings in a state without maximum suspension periods was found not to violate a student’s procedural due process rights. Hill v. Rankin County, 843 F.Supp. 1112, 1119 (S.D.Miss.1993) (holding that 30-day period between indefinite suspension and expulsion hearing did not violate student’s procedural due process rights).

Accordingly, we conclude that the 29-day period between I.A.L.’s initial suspension and the initiation of expulsion proceedings was not an unreasonable delay in violation of I.A.L.’s federal procedural due process rights.

II.

I.A.L. next challenges the sufficiency of the evidence to support the MDE’s decision. When an agency acts in a quasi-judicial capacity, we apply the substantial evidence test on review. In re Petition of N. States Power Co., 416 N.W.2d 719, 723 (Minn.1987). We give great deference to an agency’s findings of facts. Info Tel Communications, L.L.C. v. Minn. Pub. Utils. Comm’n, 592 N.W.2d 880, 884 (Minn.App.1999), review denied (Minn. July 28, 1999). Substantial evidence is “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn.2002). Under the substantial-evidence test, we evaluate the evidence relied on by the agency in view of the entire record as submitted. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668-69 (Minn.1984). If an agency engages in reasoned decision-making, the reviewing court will affirm. Id.

In affirming I.A.L.’s expulsion, the MDE found that I.A.L. failed to establish that the school board’s decision to expel her was inappropriate in any way. The grounds for LAL.’s expulsion were (1) willful violation of reasonable school board regulations, (2) willful conduct that significantly disrupted the rights of others to an education or the ability of school personnel to perform their duties, and (3) willful conduct that endangered I.A.L., other students, school district employees or school property.

The record establishes that I.A.L. violated reasonable school board regulations, which proscribe (1) the intentional infliction of “harm upon another person,” (2) disruptions to school operations, and (3) insubordination by failing “to respond in an appropriate manner to a directive from a staff member or person serving in a supervisory role.... ” I.A.L. engaged in fighting with R.S.J. and failed to respond to directives from several staff members to stop fighting and to Jensen’s attempt to break up the fight by standing between the girls. During the course of the fight, I.A.L. pulled out a clump of Jensen’s hair. In a signed statement, I.A.L. admitted that she continued to fight and pulled out Jensen’s hair after school officials intervened. The physical violence intervention plan in the student handbook that I.A.L. received and reviewed in the beginning of the year states that “[a]ny physical assault may result in a recommendation for expulsion.”

I.A.L. asserts that fighting with R.S.J. was not “willful” behavior because she acted in self-defense. I.A.L. argues that a provision of the student handbook, which states “this is a public place and all the laws, social norms, and common sense rules of public behavior apply on school property,” incorporates the criminal self-defense statute, which permits a person to use reasonable force against another to resist an offense. See Minn.Stat. § 609.06, subd. 1(3) (2002).

The school district argues that, if given credence, I.A.L.’s self-defense claim would divest the school district of its authority to promulgate and impose rules and regulations under Minn.Stat. § 123B.02, subd. 1 (2002). We agree. The United States Supreme Court has recognized the school district’s authority to promulgate disciplinary procedures. See Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969) (stating that “the Court has repeatedly emphasized the need for' affirming the comprehensive authority of ... school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the- schools”). In New Jersey v. T.L.O., the Supreme Court again endorsed the deference owed to this authority and stated that

[t]he promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should, as a general matter, defer to that judgment.

469 U.S. 325, 342 n. 9, 105 S.Ct. 733, 743 n. 9, 83 L.Ed.2d 720 (1985). Given the school district’s broad authority to establish rules governing conduct in schools, the absence of a self-defense provision in the school district’s student discipline policy leads us to conclude that a self-defense claim is neither intended nor implied. The school district policy contained in the student handbook clearly provides that any physical assault will not be tolerated and may result in expulsion. Thus, we reject I.A.L.’s assertion that her self-defense claim can be recognized with a broad reading of the student handbook.

Moreover, even if a self-defense claim were available under the'school district’s policy, I.A.L.’s self-defense claim would fail on its merits. I.A.L. continued to fight while cafeteria supervisors were attempting to separate her and R.S.J. Thus, she did not use the opportunity to retreat from the danger as required for a self-defense claim. See State v. Basting, 572 N.W.2d 281, 285 (Minn.1997).

From our careful review of the record, we conclude that there is substantial evidence to support the MDE’s findings that I.A.L. willfully engaged in fighting, in violation of school board regulations prohibiting fighting, insubordination, and disruptions to school operations.

DECISION

The 29-day period between the initial suspension and the initiation of expulsion proceedings is not an unreasonable delay in violation of the procedural due process-guarantees of the United States Constitution. The MDE’s decision to affirm I.A.L.’s expulsion is supported by substantial evidence.

Affirmed.

      . Although I.A.L. was not suspended during the period between February 8 and March 5, I.A.L. did not return to school. Thus, although 28 days elapsed between the initial suspension and the initiation of the expulsion proceedings, she was suspended for only 15 days.

      . This 15-day maximum suspension period falls at the lower end of the range established by other states. See, e.g., Wis. Stat. § 120.13, subd. (1)(b)2 (2002) (15 day maximum suspension period); Colo.Rev.Stat. § 22-33-105, subd. (2)(b) (2002) (25 day maximum suspension period); Mo.Rev.Stat. § 167.171, subd. 1 (2002) (180 day maximum suspension period).

      . Two of the suspension periods were consecutive, from January 24 to 29 and from February 3 to 7. The third suspension period occurred from March 5 to 11.