7-1800-14736-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Revocation of the License of Susan Parkin to Provide Family Child Care

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION

The above-entitled matter came on for hearing before Richard C. Luis, Administrative Law Judge, on April 18, 2002, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The record closed at the end of the hearing.

Vicki Vial-Taylor, Assistant Hennepin County Attorney, 525 Portland Avenue South, Minneapolis, Minnesota 55415, appeared on behalf of Hennepin County Children and Family Services Department (“Hennepin County” or “the County”) and the Minnesota Department of Human Services (“the Department”).  The Licensee, Susan Parkin, 4091 Elmwood Drive, SPO Box 474, St. Bonifacius, Minnesota 55375, appeared on her own behalf.

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 a review of the record.  The Commissioner may adopt, reject, or modify the Findings of Fact, Conclusions, and Recommendations contained herein.  Pursuant to Minn. Stat. § 14.61, the final decision of the Commissioner 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.  Parties should contact Michael O’Keefe, Commissioner of Human Services, 444 Lafayette Road, St. Paul, Minnesota 55155, to ascertain the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUES

Whether the Licensee’s family child care license should be revoked because the Licensee violated rules relating to supervision, physical environment, sanitation and health.

 

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

 

 

FINDINGS OF FACT

1.               The Licensee, Susan Parkin, has been licensed as a day care provider since 1995.[1]  The Licensee operates her day care out of her home in St. Bonifacius, Minnesota.  The home is located on a large lot situated on the outskirts of the municipality.  The area licensed for day care use in the home is accessed through the garage.  The area used inside the residence for daycare is the finished lower level family room and the adjacent laundry room.  The laundry room is set up for meals and arts and crafts projects.  This area opens onto the back yard.  A stepstool is present, used by the children for hand washing at the tub sink.  A shelf less than five feet high is located above the washing machine and tub sink.  Detergents and other toxics are kept in the laundry room on that shelf.

2.               On June 14, 2000, the Hennepin County Children and Family Services Department (Hennepin County) received a complaint that children in the Licensee's day care were not supervised in the yard, that animal waste and poisonous plants were present, a bonfire had been lit with day care children present, that the Licensee mowed her yard with day care children present, and that the Licensee yelled at the day care children, threatening physical discipline.[2]

3.               On June 15, 2000, Judy Ames, Licensing Social Worker for Hennepin County, made an unannounced visit to the Licensee's day care.  Ames observed rodent poison and kerosene in the garage within reach of children.  The Licensee was inside feeding an infant while the older children were playing in the yard.  The Licensee was within hearing of the children.  In the yard, Ames observed dog waste and foxglove, a poisonous variety of plant.  Also in the yard were broken chairs, a broken playpen, cut branches, and the Licensee's dried-out Christmas tree.  The Licensee indicated that she wanted to put a fence around the foxglove, rather than remove it, as Ames suggested.  Day care children were denied access to the second floor by blocking the stairs with broken chairs.  The Licensee acknowledged that she has mowed her lawn with day care children present and that she had lit a bonfire with day care children present.  Ames issued a correction order based on the observed rule violations regarding access to hazardous materials.

4.               Ames made an unannounced visit on September 18, 2000.  The Licensee was away from the premises with the day care children on a field trip.  While at the door to the premises, Ames observed antifreeze, lantern fuel, and windshield wiper fluid on the floor of the garage.

5.               On October 19, 2000, Tim Hennessey, Quality Assurance Specialist for Hennepin County, recommended that the Licensee's child care license be placed on conditional status.[3]  The recommendation was made based on the Licensee's history of noncompliance with the rules governing hazardous materials and a safe environment.  Hennessey noted that there had been correction orders on this subject issued on December 9, 1998, November 22, 1999, and June 15, 2000.[4]

6.               On November 16, 2000, the Department placed the Licensee’s day care license on conditional status for one year.[5]  The Department took this action due to the violations of the day care rules governing the physical environment of the daycare, health and sanitation standards, and methods of supervision.[6]  Under the terms of the conditional license, the Licensee was required to provide documentation that hazardous substances are inaccessible to children in care, to comply with the governing licensing rules, to attend a minimum of six hours additional training in health and safety, and to submit a written plan documenting specific methods used to ensure proper supervision of the children.[7]

7.               The Licensee requested reconsideration of the order imposing a conditional license by letter on November 29, 2000.  After a review of the underlying facts and the reasons for the conditional license, the Department affirmed the conditional license order on April 16, 2001.[8]  The Department's order on reconsideration imposed the conditional license for one year, running from April 16, 2001, to April 15, 2002.  The deadlines for several terms of the conditional license were adjusted.  The supervision plan was due by May 14, 2001.  The documentation of removal of hazardous substances was due by April 25, 2001.  The Licensee was required to obtain the six hours of additional training by August 29, 2001.

8.               Hennessey wrote to the Licensee on April 18, 2001 to remind her of the dates that terms of the conditional license needed to be met.[9]  Hennessey also offered to meet with the Licensee to go over any questions she might have.

9.               On May 1, 2001, the Licensee wrote to Ames, objecting to the findings of the Department and the terms of the conditional license.[10] 

10.           On May 3, 2001, Hennessey and Ames visited the Licensee’s day care home.  Ms. Holmes and Ms. Banks went through the Licensee’s house and noted several violations of the day care rules.  No gate was present at the bottom of the stairs to the second floor.  A pet bird was present in the day care and spent most of the visit perched on the Licensee's shoulder.  The Licensee indicated that she had the bird for several years, but the bird had never been noted on the Licensee's applications for licensure.  Ames indicated that the bird needed to be tested for Chlamydia and could not be allowed loose when day care children were present.  Ames noted that an infant was left in an exer-saucer during the entire visit.  The device was on an uneven surface and the infant appeared to be at risk of falling out of the exer-saucer.  Ames noted that the yard remained cluttered.  A poster was present in the garage which displayed a woman in a swimsuit on a motorcycle.

11.           The Licensee displayed an argumentative attitude during the visit.  She did have the supervision plan and hazard reduction plans prepared and gave them to Hennessey.  Ames issued a correction order for the Licensee to install a gate for the stairs and have the bird tested.[11]

12.           Hennessey reviewed the plans provided by the Licensee.  He wrote to the Licensee on May 4, 2001, to inform her that the plans she provided were more responses to how she felt about the issues.[12]  Hennessey informed the Licensee that the plans needed reflect how the Licensee would meet the rule requirements.  The Licensee submitted revised plans on June 4, 2001 that were approved.

13.           Hennessey made a scheduled visit at the Licensee's day care on June 25, 2001.  He discussed the absence of any documented training for 1999, 2000 and 2001.[13]  The Licensee admitted that she had not attended any training in 1999 and 2000.  She did have five credit hours in 2001 in the areas of environmental education for children, creative arts and crafts, and taxes.  Hennessey noted that insect repellant was stored within reach of children.  Similarly, a bag of empty soda cans and a board with exposed nails were accessible to children and placed in high-traffic areas likely to have children present.  He described the safety issues as "obvious."[14]  Hennessey issued a correction order regarding the toxics, empty cans and the board being accessible to day care children.

14.           On August 3, 2001, Hennessey made another visit to the Licensee’s day care home.[15]  He observed the Licensee emptying garbage in front of the house.  The children were out in the back yard with no supervision at that time.  The children were dressed in swimsuits and running barefoot through a sprinkler.  Hennessey was concerned that the back yard was in poor condition, with thorny weeds and other sharp objects present.  One child wandered off to another portion of the yard out of sight of the house and needed to be called back to the group.  The Licensee had made no effort to schedule sanitation and health training as required under her licensure.  She had not had her bird tested.  The bird was again on the Licensee's shoulder during the visit.  Hennessey issued a correction order for the lack of supervision, failure to have the bird tested, and the back yard hazards to bare feet.

15.           On August 6, 2001, Hennessey wrote to the Licensee to send her information on the disease for which the bird needed to be tested.[16]  He reminded the Licensee that the bird could have no contact with the day care children or the day care area until the testing was done.  Hennessey explained that the supervision issue from the August 3 visit was because of the Licensee being out of the sight or hearing of the children in the back yard.  Hennessey explained that the presence of hazards in the back yard was a problem due to the potential for harm to day care children.

16.           Hennessey telephoned the Greater Minnesota Day Care Association (GMDCA) on September 24, 2001 to determine if the Licensee had attended the training that Hennessy had discussed with her.  He was told that the class had been cancelled due to low enrollment and the Licensee had not signed up to attend.  This training was required by August 29, 2001 under the Licensee’s conditional license.  Hennessey extended the deadline for the Licensee to obtain the health and sanitation training to October 31, 2001.

17.           On September 28, 2001, the Licensee left a message on Hennessey’s voicemail.  She was upset at his assessment of hazards at her day care.  Hennessey passed on the call to his supervisor, Lynn Johnson.  Ms. Johnson spoke to the Licensee and related to Hennessey that the Licensee had signed up for a different class and had the bird had been taken in for testing that day.  Hennessey received a call from Sue Paxton, a representative of GMDCA, who would be meeting with the Licensee on October 1, 2001.

18.           On October 15, 2001, Paxton told Hennessey that the Licensee was having problems with basic organizational skills, including the layout of her day care area and clutter.  Paxton indicated that the large size of the back yard made supervision more difficult.

19.           On October 31, 2001, Hennepin County recommended to the Department of Human Services that the Licensee’s family child care license be revoked based on her history of licensing violations during the period of conditional licensure, including problems with supervision, sanitation and health, and failure to correct violations.[17]  The situation with the Licensee’s bird, absence of gates to stairs, failure to complete required training, presence of toxic substances in the day care area, and other hazards were cited as the factual basis for the recommendation.[18]

20.           On November 2, 2001, Ames telephoned the Licensee and informed her of Hennepin County’s recommendation.  In early November, Hennessey was contacted by the Southview Animal Hospital and informed that the Licensee’s bird had tested negative for Chlamydia.

21.           On November 7, 2001, Hennessey made a visit to the Licensee’s day care home.  The Licensee’s documentation for the testing of the bird showed that she had submitted fecal samples for testing on October 8, 2001.  The Licensee asked if the bird could be out during day care hours.  Hennessey reminded her that the bird could not be out during day care hours.  In response to the Licensee’s question, Hennessey told her that this restriction included when the day care children and the Licensee were outside.  They discussed when the Licensee would be taking the Sanitation and Health training that had not yet been completed.

22.           While at the Licensee’s day care, Hennessey noted that storage of laundry detergents remained within reach of day care children and soiled diapers were in an open waste bin in the bathroom.  The back yard contained broken lawn furniture, a fire pit, and several empty soda cans.  Hennessey told the Licensee that future visits would be unannounced.  Hennessey wrote the Licensee that day to confirm the discussions they had during the visit.  Explicitly mentioned items were the storage of hazardous material out of reach of day care children, the need to keep day care children within sight or hearing at all times, the need to complete required training, and the need for cooperation in compliance with the rules.[19]

23.           Hennessey sent the Licensee a letter on November 8, 2001 summarizing the training that she had attended.[20]  He noted which requirements the completed training applied to from 1999 to the present.  None of that training applied to the six hours required by the conditional license.  Hennessey noted that the extended deadline to complete this training was October 31, 2001.  He also noted in a correction order the hazards that had been identified during the previous day’s visit.[21]

24.           Hennessey made an unannounced visit to the Licensee’s daycare on December 12, 2001.  He noted that a toilet plunger was in the sink.  Two dog chains, a pair of adult scissors, and a small fire extinguisher were located within easy reach of children.  The primary day care area was stacked high with toys and other equipment not in use.  A toddler was in a play pen located within easy reach of a lamp cord.  That lamp posed a significant hazard to the toddler.  After the risk of injury was pointed out to the Licensee, she removed the hazard.  The toddler’s diaper was later changed by the Licensee, but she did not use a mat.  This child was running a fever and was described as having been “sick all week.”[22]  The Licensee indicated that she had not called the child’s parent because that parent had already missed some work that week.[23]

25.           On January 4, 2002, Hennessey received the documentation that the Licensee’s bird had tested negative and that the Licensee had completed the training required under the terms of her conditional license.

26.           On January 9, 2002, Hennessey made an unannounced visit to the Licensee’s daycare.  He observed that the birdcage, containing the bird, was on the shelf over the washing machine.  The food for the day care children’s lunch was arranged on the washing machine.  Various items from the bird’s cage had been washed and were sitting next to the food on the washing machine.[24]  The Licensee told Hennessey that the bird had been having health problems.  Hennessy observed that the fire extinguisher was again accessible to the day care children.  Similarly, a soiled diaper wipe was accessible to day care children.  After these problems were pointed out, the items were removed.

27.           The Department revoked the Licensee’s license on January 23, 2002.[25]  The revocation was based on the following rule violations: (1)  the Licensee failed to supervise day care children on August 3, 2001 when she was in front of her house and the day care children were in the back yard in violation of Minnesota Rule 9502.0315, subp. 29a; and (2)  the Licensee repeatedly kept toxic substances in areas accessible to children or near food, failed to keep potential hazards away from day care children, and failed to control access to pets in violation of Minnesota Rule 9502.0435, subps. 4, 6 and 12.  There was no reference to incomplete or untimely completion of training in the revocation.

28.           On or about January 21, 2002, the Licensee appealed the revocation of her license.[26]   As a result, the order revoking her licensee was stayed and the Licensee continues to provide day care pending the outcome of this appeal.

29.           On February 19, 2002, Hennessey made an unannounced visit to the Licensee’s daycare.  He observed that the perch from the birdcage was sitting in a sink.[27]  He was also concerned that a twelve-month old child was sitting unaided at the lunch table.  Without an appropriate booster seat, the child appeared about to fall.  No correction order was issued, due to the existing revocation order.

30.           The Notice of and Order for Hearing in this matter was filed with the Office of Administrative Hearings on March 18, 2002.

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

CONCLUSIONS

1.               Any of the foregoing Findings more properly considered Conclusions are hereby adopted as such.

2.               The Commissioner and the Administrative Law Judge have authority to consider the alleged violations by the Licensee pursuant to Minn. Stat. §§ 14.50, 245A.05, and 245A.08.

3.               The Licensee received timely and appropriate notice of the charges against her and the time and place of the hearing.

4.               The Commissioner has complied with all relevant substantive and procedural requirements of statute and rule.

5.               The governing statute describes the burden of proof in hearings regarding revocation of a family day care license as follows:

At a hearing regarding suspension, immediate suspension, or revocation of a license for family day care or foster care, the commissioner may demonstrate reasonable cause for action taken by submitting statements, reports, or affidavits to substantiate the allegations that the license holder failed to comply fully with applicable law or rule.  If the commissioner demonstrates that reasonable cause existed, the burden of proof in hearings . . .  shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules that the commissioner alleges the license holder violated, at the time that the commissioner alleges the violations of law or rules occurred.[28]

6.               Minn. Stat. § 245A.07, subd. 3, authorizes the Commissioner to “suspend, revoke, or make probationary a license where the license holder fails to comply fully with applicable laws or rules.”  The statute further provides that, “[w]hen applying sanctions authorized under this section, the commissioner shall consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation of the health, safety, or rights of persons served by the program.”[29]

7.               Minn. Rules 9502.0315, subp. 29a defines “supervision” as follows:

Supervision.  “Supervision” means 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.               Minn. Rule 9502.0435 – Sanitation and Health provides in part as follows:

Subp. 4.  Toxic substances.  All medicines, chemicals, detergents, poisonous plants, alcoholic beverages, and other toxic substances must be inaccessible to children.  They must be stored away from food products.  Equipment or toys which are mouthed or may be chewed must be free of lead-based paint.  Toys and equipment with chipped, cracked, or peeling paint must be tested to verify the absence of lead or be replaced.

* * *

Subp. 6.  Hazardous activity materials.  Knives, matches, plastic bags, and other potential hazards must be kept out of the reach of infants, toddlers, and preschoolers.  The use of potentially hazardous materials and tools must be supervised.

* * *

Subp. 12.  Pets.  All pets housed within the residence shall be maintained in good health and limited to dogs, cats, fish, guinea pigs, gerbils, rabbits, hamsters, rats, mice and birds if the birds are clear of chlamydia psittaci.  The provider shall ensure that:

A.  parents are notified prior to admission of the presence of pets in the residence;

B.    children handle animals only with supervision;

C.    rabies shots and tags are current for all dogs and cats;

D.    pet cages are located and cleaned away from any food preparation, storage or serving areas.

 

9.               The Commissioner has advanced evidence establishing reasonable cause to believe that the Licensee engaged in violations of the rules and statutes governing her family child care license.  Specifically, the Commissioner has established reasonable cause to believe that the Licensee (1)  failed to properly supervise day care children by being outside of their sight and hearing on August 3, 2001 to perform household chores in violation of Minnesota Rule 9502.0315, subd. 29a, and (2)  failed to comply with the heath and sanitation standards of Minnesota Rule 9502.0435, subps. 4, 6 and 12.  The health and sanitation violations include keeping toxic and hazardous materials within the reach of day care children, keeping a pet and pet care items near food, and failing to correct these problems on an ongoing basis.

10.           The Licensee has failed to demonstrate by a preponderance of the evidence that she is in full compliance with the rules and statutes governing her family child care license.

11.           These Conclusions are reached for the reasons discussed in the Memorandum below, which is incorporated in these Conclusions by reference.

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

RECOMMENDATION

IT IS RECOMMENDED:

That the revocation of the family child care license of Susan Parkin be AFFIRMED.

Dated:  May 20, 2002

 

/s/ Richard C. Luis

RICHARD C. LUIS

Administrative Law Judge

Reported:  Taped (3 tapes).

 

NOTICE

Pursuant to 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.

MEMORANDUM

Susan Parkin has held a conditional license as a day care provider since April 2001.  During the time following that licensure, Hennepin County has worked closely with the Licensee to improve her compliance with the health and sanitation rules that must be met by all licensed day cares.

Between May 2001 and February 2002, Hennepin County licensing workers visited Ms. Parkin’s day care and documented repeated licensing violations.  These violations included hazardous items accessible to children, food prepared below a bird cage, and various cleanliness concerns.  County workers issued numerous correction orders while Ms. Parkin’s license was on conditional status.  Ms. Parkin did undertake and complete 25 hours of training (most of it to make up for the two years that she failed to complete any training).  Despite completing this substantial amount of training, the observed situations at her day care demonstrate that Ms. Parkin does not recognize hazards that can readily result in injury to day care children.  Even after hazards were pointed out, similar or identical hazards were observed on subsequent visits.

Ms. Parkin asserted that toxic items on a shelf above the washing machine in the laundry room were out of reach of day care children.  But the presence of a stepstool in that location requires that a greater effort be made to protect children against the hazard of using the stool to climb onto the machine and reach the toxics.  The washing machine was used as a food preparation area.  This use also requires the Licensee to place toxics away from that shelf.

After weighing all the evidence presented at the hearing, the Administrative Law Judge finds that the Department has demonstrated that reasonable cause exists for revoking Ms. Parkin’s family child care license.  The Commissioner established reasonable cause to believe Ms. Parkin repeatedly engaged in violations of the rules governing her family child care license by allowing access to hazardous materials and failing to correct these situations after they were pointed out in correction orders.  The Administrative Law Judge does not find that these violations were either minor or technical.  Each one of these violations posed a risk to the health and safety of the children in Ms. Parkin’s care.

At the hearing, Ms. Parkin expressed her feelings regarding the process and related that she felt that she was being unfairly criticized.  There is no doubt that Ms. Parkin holds deep affection for children.  No one for the Department or Hennepin County suggested that there was any problem with the emotional environment in her day care.  But the physical environment of a day care is important to the health and safety of children.  The repeated, ongoing presence of hazards is not offset by Ms. Parkin’s depth of caring for children.  The Department and Hennepin County are properly exercising their obligation to ensure that the children in Ms. Parkin’s day care are safe from hazards.

Ms. Parkin testified that the cited problems in the correction orders were: “nothing, piddly stuff.”[30]  She also suggested that she be kept on conditional licensure for another year as an alternative to revocation.  The purpose of conditional licensure is to provide closer scrutiny of a day care with demonstrated problems.  The desired outcome of conditional licensure is increased compliance with the rules governing licensed day care.  Being willing to “do anything” after a problem is pointed out is not the issue here.  A licensee is expected to understand the principles of health, safety, and sanitation and apply these principles in the everyday operation of the day care.

Neither the Department nor Hennepin County can devote the resources required to maintain ongoing supervision of a noncompliant day care indefinitely.  The health, sanitation and safety concerns regarding the Licensee’s bird, for example, had been fully aired prior to January 2002.  Nevertheless, on January 9, 2002, the Licensee prepared food on a surface below the bird’s cage and immediately next to items from that cage, where the risk of contamination was both significant and obvious.  This conduct violates the express standard set by Minn. Rule 9502.0435, subd. 12.  The Licensee’s failure to recognize the seriousness of that risk and the clear potential for harm to day care children demonstrates that revocation is the appropriate sanction.

The ALJ concludes that the Department has established reasonable cause to believe that Ms. Parkin failed to properly supervise thechildren in her care during Mr. Hennessey’s visit of August 3, 2001.  Mr. Hennessey observed the Licensee in front of the house.  At the hearing, the Licensee maintained that all her day care children were in the front of the house.  That testimony is not consistent with her normal practice in conducting her day care.  The day care children were usually allowed to play in the back yard while the Licensee cared for infants in the residence or performed housework.  The Licensee was not within sight or hearing of the day care children on August 3, 2001 in violation of Minn. R. 9502.0315, subd. 29a.

In summary, the Department has demonstrated that reasonable cause existed for revoking Ms. Parkin’s family child care license based upon the numerous substantiated violations discussed above.  Ms. Parkin has failed to show by a preponderance of the evidence that she fully complied with the rules and statutes governing her family child care license.  The Administrative Law Judge is persuaded that given the chronicity[31] of the violations involved and Ms. Parkin’s failure to address the violations during her year of conditional licensure status, a lesser negative action is not appropriate.  Therefore, based on the violations of the rules cited above, the Administrative Law Judge recommends that the revocation of Susan Parkin’s child care license be AFFIRMED.

R.C.L.