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7-1800-12890-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Immediate Suspension of the Family Child Care License of Carlotta Kiage |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on for hearing before Administrative Law Judge (ALJ) Richard C. Luis on June 14, 2000, at the Office of Administrative Hearings in Minneapolis. Vicki Vial-Taylor, Assistant Hennepin County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, Minnesota 55415, represented the Hennepin County Department of Children and Family Services (County). Carlotta Kiage, 3028 Blaisdell Avenue South, Minneapolis, Minnesota 55408-3158 (Licensee, Appellant) appeared on her own behalf. The record in this matter closed at the conclusion of the hearing on June 14, 2000.
Notice is hereby given that, pursuant to Minn. Stat. § 14.61, the final decision of the Commissioner of the Department of Human Services shall not be made until this Report has been made available to the parties to the proceeding for at least ten days, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the Commissioner. Exceptions to this Report, if any, shall be filed with the office of Michael O’Keefe, Commissioner, Minnesota Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155-3815.
STATEMENT OF ISSUE
Whether the immediate suspension of the family child care license of Carlotta Kiage should be affirmed because her failure to comply with applicable law or rules has placed the health, safety or rights of persons served by her program in imminent danger?
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Carlotta Kiage was licensed to operate a family child care facility at her residence, 3028 Blaisdell Avenue South in Minneapolis, from November 1993 until the imposition of an immediate suspension of her license on March 21, 2000. She appealed the immediate suspension on March 24, 2000, and this hearing process followed.
2. At all times relevant to this matter, the Licensee’s son, K.C., age 14, has lived with her at her residence/facility.
3. In 1995, when K.C. was ten years old, a complaint was made to the County Agency that K.C. had sexually abused a two-year-old girl to whom the Licensee was providing day care. The County’s investigation concluded that sexual abuse had occurred, but failed to establish whether the abuse happened during day care hours, and the matter was dropped. Exhibit 2.
4. During the fall of 1999, the County’s Child Care Licensing Division learned through a routine background check that K.C. had been charged with three counts of assault against his schoolmates in 1997. As a result, the County licensing worker assigned to the matter called Ms. Kiage on December 6, 1999. The conversation was formalized in a letter to the Licensee the same day, which letter reads, in part: “You (Licensee) agreed to ensure that (K) does not have any unsupervised contact with the day care children.” Exhibit 3.
5. On March 14, 2000, L.R., the mother of a five-year-old girl at the Licensee’s day care facility, reported to the Minneapolis Police Department that her daughter, M.C., had been touched inappropriately by K.C. on approximately three occasions while at the Licensee’s residence. M.C. had been in the Licensee’s care since November 1999. She told her mother that K.C. had kissed her and “put his long thing (penis) to her froggy (vagina)”. Exhibit 6.
6. On March 17, 2000, M.C. was interviewed at CornerHouse by an “Interview Specialist”. The Minneapolis Police Department and the County Agency believe the CornerHouse interview results to be credible. The CornerHouse interviewer concluded that M.C. had been sexually abused by K.C., in K.C.’s bedroom at the Licensee’s residence, which is her day care facility. Exhibit 7.
7. During an interview with a Minneapolis Police Sergeant on March 31, 2000, an interview to which the Licensee consented, K.C. admitted that M.C. had been in his bedroom, that they were naked, and that he rubbed his penis against her buttocks and anal area. This admission came after K.C. had been apprised of his rights. Exhibit 12.
8. On April 10, 2000, K.C. was charged in Hennepin County Juvenile Court with two counts of Criminal Sexual Conduct in the First Degree and one county of Second Degree Criminal Sexual Conduct (all felony counts) for alleged sexual contact with M.C. on or about November 1999 through March 2000 at the Licensee’s residence/facility, 3028 Blaisdell Avenue South in Minneapolis. Exhibit 12. At the time of the hearing in this matter, the juvenile criminal case remained unresolved.
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Human Services have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 245A.07, subd. 2.
2. The Department of Human Services has given the Licensee proper and timely notice of the hearing in this matter. The Department has complied with all relevant substantive and procedural requirements of law and rule.
3. Any of the foregoing Findings of Fact more properly termed Conclusions are hereby adopted as such.
4. Minn. Stat. § 245A.07, subd. 2, provides, in pertinent part:
If the license holder’s failure to comply with applicable law or rule has placed the health, safety or rights of persons served by the program in imminent danger, the commissioner shall act immediately to suspend the license.
5. Minn. Rule 9543.1010, subp. 8, provides:
“Imminent danger” means a child or vulnerable adult is threatened with immediate and present abuse or neglect that is life-threatening or likely to result in abandonment, sexual abuse, or serious physical injury.
6. Minn. Rule 9502.0431, subp. 9, provides, in pertinent part:
If the commissioner finds that the health, safety or rights of the children in care are in imminent danger, the commissioner shall immediately suspend the license.
7. Minn. Rule 9502.0315, subp. 29a., defines “Supervision” as a caregiver being within sight or hearing of an infant, toddler, or preschooler at all times so that the caregiver is capable of intervening to protect the health and safety of the child. For the school age child, it means a caregiver being available for assistance and care so that the child’s health and safety is protected.
8. On at least one occasion between November 1999 and March 2000, the Licensee placed a five-year-old child in imminent danger by failing to supervise her facility in an adequate fashion. She allowed for her 14-year-old son to be alone in his room with a five-year-old child in her care, a situation that resulted in the sexual abuse of the five-year-old by her son. This situation violated Minn. Rules 9502.0315, subpart 29a., and 9543.1010, subp. 8.
9. The County’s evidence demonstrates the “reasonable cause” required to sustain the immediate suspension of the Licensee’s family child care license. This demonstration of reasonable cause shifts the burden of proof to the Licensee pursuant to Minn. Stat. § 245A.08, subd. 3.
10. The Licensee did not demonstrate by a preponderance of the evidence that she was in full compliance with the laws or rules governing her family child care facility.
Based on the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the immediate suspension of the family child care license of Carlotta Kiage be AFFIRMED.
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Dated this |
5th |
day of |
July, |
2000. |
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RICHARD C. LUIS |
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Administrative Law Judge |
Reported: Taped
Pursuant to Minn. Stat. 14.62, Subd. 1, the Department must serve the final decision in this case upon each party and the Administrative Law Judge by First Class Mail.
The Appellant presents three arguments against the immediate suspension of her license. First, she contends that since the 1995 allegations of sexual abuse never resulted in disciplinary action, they should not be considered. Second, since she was “cleared” of maltreatment (Exhibits 14, 15) in connection with the incidents for which her son has been charged with felony Criminal Sexual Conduct, that no action should be taken against her license. Finally, she contends that no action should be taken because her son has not been proven guilty of the recent charges in a court of law. Those arguments are misplaced.
The record is clear that County officials who investigated the 1995 charge that K.C. had sexually abused a two-year-old day care child believed that he had done so. No action was taken then because of an inability to determine the time of the incident (whether it happened during day care hours). However, the documented belief on the part of County officials that K.C. was a potential sexual predator is relevant to the establishment on the agency’s part of reasonable cause to believe that the family child care rules were violated. It is relevant also because sexual abuse is one of the specific examples noted of what must be avoided under the definition of “imminent danger”.
The effect of the Licensee’s having been personally “cleared” of maltreatment (Exhibits 14, 15) is qualified by Exhibit 17. That document, issued by the Child Protection Investigator who determined that Ms. Kiage was not responsible for the maltreatment of M.C., shows that the investigator is not concluding that no sexual abuse occurred, nor that someone other than the Licensee’s son was the perpetrator. The investigator’s conclusions, as expressed in Exhibits 14 and 15, do nothing to establish that the License did not violate Minn. Rule 9502.0315, subp. 29a. by allowing M.C. to be alone with her son (which violation led to the placement of the child in imminent danger within the meaning of Minn. Rule 9543.1010, subp. 8).
The fact that the Appellant’s son has not yet been proven guilty in a court of law of the allegations of Criminal Sexual Conduct is irrelevant here. The standard of proof and burden of proof are different in this proceeding than in a criminal case. In the criminal case, the burden is on the State, throughout the proceeding, to prove beyond a reasonable doubt that K.C. committed the crimes for which he has been charged. In this proceeding, the burden of proof is on the agency, initially, to establish “reasonable cause” that the violations of statute and/or rule occurred. The County has done that – it has a sworn statement by a prosecutor (Exhibit 12) that K.C. admitted sexual contact with a day care child in the day care residence. The inference that Ms. Kiage was not supervising the situation is overwhelming. The indicators of reliability in such evidence go beyond what is required to establish “reasonable cause”. At that point, the burden of proof is on the Licensee to establish, by a preponderance of the evidence, that she was in compliance with child care licensing standards. She has failed to do that. In fact, she presented no affirmative evidence that the alleged acts of Criminal Sexual Conduct by her son against M.C. did not occur. Under such circumstances, the immediate suspension of her license should be upheld.
R.C.L.