OAH Docket No. ––––

OAH Docket No. 4-1800-12413-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

In Re: The Denial of the License of

Steve and Melissa Miller

P. O. Box 143

South Haven, MN 55382

to provide child foster care under Minnesota Rules, parts 9545.5105 to 9545.0445

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDATION

The Minnesota Department of Human Services (the Department) initiated this contested case proceeding by issuing a Notice of and Order for Hearing on May 27, 1999. The notice scheduled a hearing in this matter for Friday, August 6, 1999, in Buffalo, Minnesota.

Brian J. Asleson, Assistant Wright County Attorney, Wright County Government Center, 10 2^nd Street NW, Room 150, Buffalo, Minnesota 55313-1189, is representing the Minnesota Department of Human Services and the Wright County Human Services Agency (the County). Lee R. Wolfgram, Attorney at Law, 20 2^nd Street NE, Suite 1407, Minneapolis, Minnesota 55413, is representing the Appellants, Steve and Melissa Miller.

NOTICE

This Report is a recommendation, not a final decision. The Commissioner of the Minnesota Department of Human Services will make the final decision after reviewing the hearing record. The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Under Minnesota Law[1], the Commissioner may not make his final decision until after the parties have had access to this Report for at least ten days. During that time, the Commissioner must give each party adversely affected by this Report an opportunity to file objections to the report and to present argument to him. Parties should contact the office of Michael O’Keefe, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, Minnesota 55155, to find out how to file objections or present argument.

THE ISSUE

Whether Mr. and Mrs. Miller’s appeal should be dismissed with prejudice.

Based upon the record in this matter, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On May 27, 1999, the Department served the Notice of and Order for Hearing that began this matter by sending it via U. S. Mail to Steve and Melissa Miller at P.. Box 143, South Haven, Minnesota 55382.

2. On July 2, 1999, Mr. Asleson filed a Notice of Appearance indicating that he was appearing on behalf of the Department and the County in this contested case proceeding. And by letter dated July 30, 1999, Mr. Wolfgram gave notice that he would be appearing on behalf of the Millers.

3. The parties through their attorneys subsequently agreed that this proceeding may be dismissed without prejudice and sought an indefinite continuance of the hearing in this matter in order to obtain the Department’s concurrence with that agreement. And by order entered on August 4, 1999, the Administrative Law Judge granted that continuance.

4. By letter dated August 30, 1999, the Department advised the Administrative Law Judge and the parties that it would only agree to a dismissal with prejudice.[2]

5. The parties have subsequently been unable to agree on either a dismissal with prejudice or on whether this matter should now go to hearing.[3] And by motion filed on July 17, 2000, the County is seeking an order dismissing this proceeding with prejudice for failure of the Millers to prosecute this appeal. The Millers have not responded in any way to the County’s motion.

6. Steve and Melissa Miller have failed to take reasonable steps to prosecute their appeal of the Department’s decision to deny them a child foster care license.

7. The Administrative Law Judge adopts as Findings any Conclusions which are more appropriately described as Findings.

Based upon the Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. Minnesota law[4] gives the Administrative Law Judge and the Commissioner of the Department of Human Services authority to conduct this proceeding and to make findings, conclusions, and orders.

2. The Department and the County have complied with all the law’s substantive and procedural requirements.

3. The Department and the County gave Mr. and Mrs. Miller proper and timely notice of the hearing in this matter.

4. Steve and Melissa Miller have failed to take reasonable steps to prosecute their appeal of the Department’s decision to deny them a child foster care license.

5. Because of the Millers’ failure to prosecute their appeal, the Commissioner may dismiss this contested case proceeding with prejudice.[5]

6. The Administrative Law Judge adopts as Conclusions any Findings which are more appropriately described as Conclusions.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

The Administrative Law Judge recommends that the Commissioner DISMISS this contested case proceeding, with prejudice.

Dated this

14th

day of

August

2000.

BRUCE H. JOHNSON

Administrative Law Judge

NOTICE

Under Minnesota law,[6] the Commissioner must serve his final decision upon each party and the Administrative Law Judge by first-class mail.

[1] Minn. Stat. § 14.61 (1998). (Unless otherwise specified, all references to Minnesota Statutes are to the 1998 edition.)

[4] Minn. Stat. §§ 245A.01 to 245A.16, and 14.50.