6-1800-13211-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Revocation of the License of Lisa Michelle Anderson to Provide Family Child Care Under Minnesota Rules, Parts 9502.0300 to 9502.0445

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

 

            The above-entitled matter came on for hearing on December 4, 2000 at the Dakota County Government Center, Hastings, Minnesota before Allan W. Klein, Administrative Law Judge.  The hearing went on for part of a second day, and concluded on December 5, 2000.

 

            Appearing on behalf of the Department of Human Services and Dakota County Social Services Department was Margaret M. Horsch, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033-2392.

            Appearing on behalf of Lisa M. Anderson, Licensee and Respondent, was Karen E. Marty, Attorney at Law, 3601 Minnesota Drive, Suite 880, Bloomington, Minnesota 55435.

            The record closed on February 7, 2001.

NOTICE

            Notice is hereby given that this Report is a recommendation, not a final decision.  The Commissioner of the Department of Human Services will make the final decision after a review of the record.  The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions or Recommendation.  Minn. Stat. § 14.61 provides that the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceedings for at least 10 days.  Any party adversely affected by this Report may file exceptions or present argument to the Commissioner.  Parties should contact the office of Michael O’Keefe, Commissioner, Minnesota Department of Human Services, 2^nd Floor, 444 Lafayette Road, St. Paul, Minnesota 55155 regarding procedures for filing exceptions or presenting argument.

STATEMENT OF ISSUE

Should Lisa Anderson’s Family Child Care License be revoked?

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.                  Lisa Anderson is a resident of Apple Valley, Minnesota.  She is now 30 years old, and has been licensed to provide family childcare since 1996.  Prior to that time, she worked for approximately two years in a day care center located in a church.  She has certified nursing training, and has done some work as a nurse’s aide.  Ms. Anderson’s mother provided day care in their home while Ms. Anderson was growing up.

2.                  There are two medical situations which are relevant to this proceeding.  The first is that Ms. Anderson stutters, and sometimes has difficulty getting words out.  Sometimes there are pauses between words.  The stuttering is more noticeable when Ms. Anderson is feeling stress.  Sometimes, particularly on the telephone, persons misinterpret Ms. Anderson’s speaking pattern to be the result of alcohol or drugs, or to be the result of a lack of mental capacity.  None of those conditions are, in fact, present in the case of Ms. Anderson, but the initial impression that some persons form is based upon that misunderstanding.

3.                  Beginning in 1997, Ms. Anderson suffered from endometriosis, which produced severe cramping and pain on a monthly basis.  Ms. Anderson had to be taken to the emergency room on one occasion and often had to call her mother (who was a back-up caregiver) for assistance with the children in care so that Ms. Anderson could lie down.  Ultimately, after two laparoscopies, the last of which was in November of 1999, the illness has been cured.  Following a short recovery period after the November, 1999 surgery, Ms. Anderson has not had any further problems with the illness.  This condition did, however, reduce Ms. Anderson’s ability to cope with the day-to-day frustrations of providing childcare.  On a number of occasions, the combination of the pain and the stress caused by a difficult child situation were more than Ms. Anderson could handle.

4.                  When Ms. Anderson felt overwhelmed, she would cry, and express her frustration with children or their parents to other persons from whom she sought emotional support.  These persons became concerned about Ms. Anderson’s ability to cope, and, in some cases, when coupled with her stuttering, they concluded that she was not fit to be a daycare provider.  Some of them, in fact, contacted the County and expressed their concerns about whether Ms. Anderson was capable of being a satisfactory provider.

5.                  On March 4, 1977, approximately six months after she was first licensed (in September of 1996) Ms. Anderson called her licensing worker at Dakota County.  The licensing worker was unavailable, so Ms. Anderson spoke to another worker.  Ms. Anderson was in tears and very upset.  She stated that one of the infants in her care would not stop crying and that she did not know what to do.  The worker, who had been with Dakota County Social Services for more than 12 years, sensed panic in Ms. Anderson’s voice.  She perceived the panic to be at a level which the worker had only heard once before in her years of experience.  The worker immediately drove to Ms. Anderson’s home because she did not believe that Ms. Anderson was in a condition to appropriately supervise children, and the worker was concerned for the safety of the crying child.  Another social worker later testified that this incident raised “red flags” because child protection training had suggested that such a high level of agitation could be a precursor to shaken baby syndrome.[1]

6.                  The County routinely sends out questionnaires to parents of children in care, and one of these was sent out by the County and received back on June 9, 1997.[2]  This questionnaire response noted that Anderson appeared to be easily frustrated with preschool age children.  The response went on to note that the parents’ primary concern about Ms. Anderson was her ability to follow instructions.  The parent wrote:

We have given verbal and written instructions regarding our wishes for his care (i.e. feeding schedule, amounts, schedule for naps, diaper change) which have not been followed as specified.  We have had to repeat instructions several times before she “got it”.  Examples: fed baby every two hours, though we specified every two and a half to three hours, put child in swing after requested she not do so, put toys and stuffed animals in crib with child several times though we requested that she not do so, gave medication which we did not provide and was not on our list of authorized medications (Ora-gel) to be administered.

7.                  On August 11, 1997, a supervising licensing worker received a telephone call complaining about Ms. Anderson’s behavior.  One of the specific complaints was that a child was being fed foods that had been expressly excluded by the parent.  This allegation was investigated with Ms. Anderson, and Ms. Anderson readily admitted that she had not followed the instructions because the parent was very demanding and she just gave the child the same food that others got.  This resulted in a Correction Order dated August 27, 1997[3] and an explanatory letter from the supervising social worker to Ms. Anderson.[4]

8.                  The supervising social worker, Joan Granger-Kopesky, thought that Ms. Anderson would benefit by participating in a mentoring program, which might help her put her frustration with infants and parents into some perspective.  She recommended the program to Ms. Anderson who agreed it would be a good idea.  Ms. Granger-Kopesky made arrangements for Ms. Anderson to participate in the program, and followed up to make sure that Ms. Anderson had been linked up with a mentor.

9.                  Ms. Anderson was linked with Beth Hukkaa, who was a licensed child care provider who had just started in the business in 1995, only a year before Ms. Anderson.  The two would do things together once or twice each week, such as take their children to a park, to the zoo, to an open gym, to an apple orchard, and on walks.  Ms. Hukkaa noticed that Ms. Anderson became easily frustrated with children who did not do what Ms. Anderson wanted, and that she would sometimes yell at them out of frustration.  Ms. Anderson’s preferred method of discipline was time outs, but Ms. Hukkaa believed that Ms. Anderson did not understand what was an age-appropriate time out.  She felt that Ms. Anderson lacked the common sense and the ability to think quickly which Ms. Hukkaa though was necessary to survive with children, particularly infants.  Although Ms. Hukkaa had served as a mentor to three or four persons by the time of the hearing, she thought that Ms. Anderson was different than the others.  She thought that Ms. Anderson’s thought processes were different, and that she learned in a different way from Ms. Hukkaa.  Ms. Hukkaa found that she had to be really blunt and direct in explaining things to Ms. Anderson in order for Mr. Anderson to “get it”.  Fairly early on in their relationship, Ms. Hukkaa was surprised that Ms. Anderson was calling her as many as 6 or 8 times per day on days where Ms. Anderson was having a hard time, and Ms. Hukkaa came to realize that Ms. Anderson was seeking emotional support, not practical advice on how to deal with a specific situation.  Ms. Anderson would say things like: “today, I just can’t take it anymore, and I want to quit.”  Sometimes, Ms. Hukkaa suggested that Ms. Anderson should quit.  Ms. Hukkaa was aware of Ms. Anderson’s endometriosis, and noted that the pain was decreasing her coping levels.  Ms. Hukkaa thought that the frequent calls for emotional support occurred roughly 8 days a month.  Eventually, Ms. Hukkaa decided that she was not probably the best mentor for Ms. Anderson, and the mentoring program moved Ms. Anderson to another mentor.

10.             A variety of other calls and concerns[5] caused the licensing supervisor to meet with the Assistant County Attorney representing the agency.  This meeting took place on January 23, 1998.  The gist of the meeting was the Agency’s concern over Ms. Anderson’s ability to cope.  The Assistant County Attorney concluded that there were insufficient licensing issues to take any action.  Agency staff was encouraged to investigate and see if there were some licensing violations.  In March, 1998, Agency personnel informed the County Attorney that: “We had received contact by another provider who had questions about Ms. Anderson’s judgment, but there were no licensing issues we could act on.”  The Assistant County Attorney reportedly told the agency staff “to follow-up on any issues possible given the nature of our concerns about Ms. Anderson’s care.”[6]

11.             The “other provider” referred to above is a daycare provider in Ms. Anderson’s neighborhood named Peggy Gopaul.  Ms. Gopaul admits to being known as “the neighborhood watchdog”, and as early as March of 1998, had decided that Ms. Anderson was not an appropriate daycare provider.  Ms. Gopaul called her own social worker, who use to be Ms. Anderson’s social worker, and expressed concerns about Ms. Anderson’s “brain problem”.  Ms. Gopaul was prompted to call because Ms. Anderson had just told her that she was going to enroll another infant (she already had one in care), and Ms. Gopaul did not believe that Ms. Anderson could handle two infants at the same time.  Ms. Gopaul stated that she knew that the mentor working with Ms. Anderson had quit because Ms. Anderson “didn’t want to learn”.  Ms. Gopaul wanted the County to caution parents about Ms. Anderson’s care.[7]

12.             No substantial licensing violations came to the County’s attention until the afternoon of February 22, 2000.  On that afternoon, the County received three telephone calls from other licensed daycare providers in Ms. Anderson’s neighborhood.  All three reported having seen Ms. Anderson hit a child who was not being cooperative during a walk.  Two days later, Ms. Anderson’s licensing worker and another worker confronted Ms. Anderson with the stories that they had heard.  They did not ask Ms. Anderson to describe what had happened, but instead told her what they had heard, and asked if it was true.  Ms. Anderson, upset and knowing that she should not have done what she did do, just admitted that the stories were true without a step-by-step statement of her own regarding what happened.  Based upon the allegations and the admission, the County issued a correction order on March 13, 2000, alleging spanking, slapping, leaving two children unsupervised, and a record-keeping violation which really is not a part of the February 22 incident.[8]  The Agency believed that the allegations were the licensing violations which they had been looking for, and that their earlier concerns about Ms. Anderson’s inability to deal with young children and poor judgment had been confirmed.  After consulting among various Agency staff and the state Department of Human Services, the Agency recommended that Anderson’s license be revoked.  This recommendation was communicated to the Department in a letter of March 29, 2000.[9]

13.             On February 22, 2000, the weather was unseasonably warm, with the Minneapolis-St. Paul temperature hitting a high of 50 degrees.[10]  It was sunny and melting.  Ms. Anderson decided to take the four children in her care for a walk before lunch.  Ms. Anderson lives in a relatively new subdivision in Apple Valley.  Typical of such subdivisions, the streets are not laid out in a neat square grid.  Instead, they are windy, with numerous cul-de-sacs leading off of them, and variations in the distance between one through street and the next.  Ms. Anderson’s street, known as Harmony Way, is one such windy street, with a number of cul-de-sacs, and few “traditional” intersections with four corners arranged in a neat square.  Harmony Way essentially runs north and south, preceding northerly from 160^th Street West.  160^th Street West is a major artery.  Where it intersects with Cedar Avenue to the east of Ms. Anderson’s house, there is a stoplight, and 160^th Street is one of the few straight streets in the area.  Ms. Anderson’s home is only approximately two houses north of the intersection of Harmony Way and 160^th Street, but because of the high volume of traffic and the speed of the vehicles on 160^th Street, Ms. Anderson does not use it for walks with the children.  Instead, she proceeds north and west on Harmony Way until it ends at a “T intersection” with Harwell Avenue.  She then proceeds south and west on Harwell to 159^th Street, where she turns south and east until 159^th Street runs into Harmony Way.  She then takes Harmony Way back to her home.  This is the path she describes as “a walk around the block”, and it is approximately 0.9 miles in length.[11]

14.             On February 22, Ms. Anderson put her two infants into a stroller, and had her two toddlers Jacob (34 months) and Linnea (21 months) walked with her.  Linnea was teasing Ms. Anderson by “dawdling” and not keeping up with the group.  Linnea would laugh, and jump into a snowbank.  Ms. Anderson would call her to come back to the group, and she would, eventually, catch up with them and the group would proceed.  But then Linnea would lag behind, and would have to be called again.  This went on several times until Ms. Anderson got frustrated.  She ran back to where Linnea was playing in the snowbank, picked her up, and slapped her approximately five times on the hand.  Both Ms. Anderson and Linnea were wearing mittens, and Linnea did not cry or otherwise exhibit pain.  Ms. Anderson then led Linnea back to where the stroller and the other toddler were waiting, and the group proceeded south and west on Harwell Avenue.  Unbeknownst to Ms. Anderson, this incident was witnessed by Sharon Mulvihill, who lives on the southeast corner of the intersection of Harmony Way and Harwell Avenue.

15.             As the group proceeded south and west along Harwell Avenue, Linnea continued to lag behind.  When Ms. Anderson with the stroller and the other toddler, reached the corner of Harwell Avenue and 159^th Street, Linnea was approximately 125 feet behind them, again playing in a snowbank.[12]  Ms. Anderson left the stroller and the other toddler at the corner, and ran back to get Linnea.  Linnea was laughing, and Ms. Anderson was frustrated.  Ms. Anderson pulled Linnea out of the snowbank with both arms and swatted her with an open hand on her bottom.  At about that time, a truck came into view coming north down Harwell towards the intersection where the stroller and the toddler were standing on the corner.  Ms. Anderson realized that this was a dangerous situation, and ran back to the stroller and the toddler, leaving Linnea behind.  The truck turned from Harwell onto 159^th Street so that had the toddler happen to push the stroller out into the intersection, the truck could have hit it.  That did not happen, however, and the truck made the turn and drove away without incident.  Ms. Anderson then went back to Linnea, and brought her back up to the rest of the group, who then all turned onto 159^th Street and proceeded home without further incident.

16.             This incident on the corner was witnessed by both Peggy Gopaul and Jill Swanson, who are both licensed childcare providers.  They live roughly three houses apart, and are both able to view the intersection from their houses.  Within a few hours, providers Gopaul, Swanson and Mulvihill all called the Agency to report what they had seen.  As noted earlier, after investigation the Agency issued a Correction Order and shortly thereafter, recommended license revocation.

17.             On February 24, 2000, when the social workers went out to Ms. Anderson’s house to investigate the reports, they also checked for paperwork on the children that were in care.  One of the children in care was Jacob Thompson, who had been there since April of 1998.  Another of the children there that day (and also on February 22, the day of the walk) was Sam Thompson, Jacob’s younger brother.  Sam was only about three months old, and had been one of the infants in the stroller.  Ms. Anderson had no admission and arrangements form, or signed written consent for emergency medical care.  She did not believe these were necessary for Sam, because he was there in February only on an irregular basis, “getting acquainted” prior to his regular attendance which was scheduled to begin in March, 2000.  Ms. Anderson also believed that most of the data that she needed, such as emergency telephone numbers, were the same for Sam as they were for his older brother, and thus she felt she had everything she needed.

18.             On June 12, 2000, the Commissioner revoked Ms. Anderson’s license.[13]

19.             On June 22, Ms. Anderson appealed the revocation.[14]

20.             On July 7, 2000, the Commissioner issued a Notice of and Order for Hearing, setting a hearing in this matter for November 20 and 21.  This was not served upon Ms. Anderson until October 12, 2000.

21.             On November 9, a prehearing conference telephone call was held between the Assistant County Attorney, Ms. Anderson’s attorney, and the Administrative Law Judge.  It was agreed that the hearing would be continued to December 4 and 5 in order to allow the parties to complete discovery and allow Ms. Anderson’s attorney adequate time to prepare for the hearing.  The hearing did, in fact, go forward on December 4 and 5.

 

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

CONCLUSIONS

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

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 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.  Minn. Rule 9543.0120, subpt. 1(C) is directory, not mandatory.

3.                  Ms. Anderson did violate Minn. Rule part 9502.0395, subp. 1(B) and subp. 2(A) by slapping Linnea on the wrist and swatting her on the bottom on February 22, 2000.

4.                  Ms. Anderson violated Minn. Rule part 9502.0415, subp. 1(B) by leaving the stroller and the other toddler at the corner at 159^th Street and Harwell when she went back to pick up Linnea.  This placed them in danger and the situation was inappropriate for their developmental stage and ages.

5.                  Ms. Anderson violated Minn. Rule part 9502.0405, subp. 4 by failing to have necessary paperwork for Sam Thompson.  While much of the required data for Sam is the same as that for his older brother, Jacob, there was no signed written consent for emergency medical care or treatment for Sam, and thus the rule was violated both in spirit and in letter.

6.                  The County’s evidence demonstrates the “reasonable cause” required to sustain the revocation of the family child care license.  This demonstration of reasonable cause shifts the burden of proof to Ms. Anderson pursuant to Minn. Stat.
§ 245A.08, subd. 3.

7.                  Ms. Anderson 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 upon the foregoing findings and conclusions, and all the files and proceedings herein the Administrative Law Judge makes the following:

RECOMMENDATION

            That the Commissioner take disciplinary action against the license of Lisa Anderson to provide family child care.

Dated this 27^th day of February, 2001

 

 

ALLAN W. KLEIN

Administrative Law Judge

 

 

Reported: Tape Recorded (7 tapes).  No transcript.

 

NOTICE

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.