OAH Docket No. 4-1800-14829-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
In the Matter of the Revocation of the License of
Pamela Kunze
1341 Campbell Lane NW FINDINGS OF FACT ,
Hutchinson, MN 55350 CONCLUSIONS
to provide family child care under Minnesota AND ORDER
On August 12, 2002, the undersigned Administrative Law Judge (the ALJ) issued a report in this contested case proceeding consisting of Findings of Fact, Conclusions, and a Recommendation to the Commissioner. It was the ALJ’s recommendation that the Commissioner rescind and set aside the County’s determination that Ms. Kunze committed maltreatment of a child, the County’s disqualification of Ms. Kunze as a license holder, and the Department’s order revoking Ms. Kunze’s family child care license. By order entered on October 15, 2002, the Commissioner adopted the ALJ’s findings, conclusions, and recommendation and ordered that all three administrative actions be rescinded and set aside.
On October 23, 2002, Ms. Kunze made an application to the ALJ for an application of fees and other expenses pursuant to the Minnesota Equal Access to Justice Act[1] (MEAJA) on the ground that the position of the state during the pendency of this contested case proceeding was not substantially justified. By copy of that letter, Ms. Kunze served her application on the County but not on the Department. She subsequently served a copy of the application on the Department on November 18, 2002. For good cause, the ALJ extended the time for the Department to respond to the application until December 9, 2002. And the Department did respond on that date with a written objection. The issues being thus joined, this matter is now before the ALJ on Ms. Kunze’s application for fees and other expenses.
Sara DeSanto, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, is appearing in this matter as attorney for the Department of Human Services (the Department). Dan K. Prochnow, Attorney at Law, 126 Franklin Street NW, Suite 100, Hutchinson, Minnesota 55350, is appearing in this matter for the Licensee, Pamela Kunze.
STATEMENT OF ISSUES
(1) Whether or not the MEAJA allows the ALJ to award fees and other expenses against McLeod County (the County); and
(2) Whether or not the Department’s actions in revoking Ms. Kunze’s family child care license were “substantially justified” within the meaning of the MEAJA.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. At the times relevant to this proceeding, Pamela Kunze resided at 1341 Campbell Lane NW in the City of Hutchinson, McLeod County, Minnesota.
2. In January 1996, Mrs. Kunze received a Class A license from the Department and McLeod County Social Services, pursuant to Minnesota Rules, Chapter 9502, to provide family day care at her home in Hutchinson.[2]
3. Mrs. Kunze has been re-licensed twice to provide family day care, in 1997 and most recently in October 2000.[3]
4. On November 14, 2001, the County issued a letter notifying Mrs. Kunze of the following, among other things:
We determined that maltreatment occurred and that child protective services are not needed. The substantiated maltreatment involved unreasonable confinement of a child in your family child care home. On more than one occasion, a child was wrapped tightly in blankets and tied with blankets to the crib.
The incident of substantiated maltreatment for which you were determined to be responsible meets the criteria to be determined as recurring, and causes you to be disqualified from any position allowing direct contacts from persons receiving services from programs licensed by the Department of Human Services and the Minnesota Department of Health, from facilities services youth (sic) licensed by the Department of Corrections, and from unlicensed Personal Care Provider Organizations.
5. During the maltreatment incidents that the County cited, Mrs. Kunze had employed the following swaddling technique with the infant in question: She had used a lightweight cotton blanket, about the size and weight of a hospital receiving blanket. She had laid the blanket out in the crib and placed the infant on his or her back in the middle of the blanket but had left the infant’s head free of the blanket and over its top edge. She had then brought one top corner of the blanket diagonally across the infant’s shoulder and tuck it firmly under the knees. She had then folded the bottom of the blanket up over the legs. She had then taken the other side of the blanket, folded it firmly over the infant’s body and legs, and tucked it under the infant’s body, allowing the infant’s weight to keep the swaddling blanket secure. She had not allowed the blanket to cover any portion of the infant’s head or face.[4]
6. Ms. Kunze had not actually tied the infant to the crib. Rather, as an additional precaution against possible rolling over, Ms. Kunze had fashioned what she called a “stork sling,” had placed the swaddled child into it, and had secured it to the side rail of the crib with a knot. The sling arrangement consisted of a blanket that was somewhat larger than a swaddling blanket. Mrs. Kunze had laid it out on the crib mattress and had placed the swaddled infant into it diagonally, so that the infant’s head had been pointed toward one corner and the infant’s feet toward the opposite corner. Mrs. Kunze had then picked up the other two corners on the infant’s sides, had pulled them together, and had tied them together in a knot which also secured them to the crib rail. The way in which the sling had been knotted to the crib rail did not allow the sling arrangement to slide up or down around the crib rail. The bottom of the sling arrangement had been elevated slightly above the crib mattress so that the infant had been hanging as if in a hammock. The infant was within Mrs. Kunze’s sight most of the time that the infant was in the sling arrangement.[5]
7. The County’s finding that Ms. Kunze had on more than one occasion actually tied an infant to a crib with blankets was an honest, inadvertent, and excusable mistake of fact, resulting from ambiguous communications between County personnel, Ms. Kunze, and the infant’s mother.
8. On November 28, 2001, Mrs. Kunze made a written request to the County for reconsideration of its maltreatment and disqualification determinations.[6] Ms. Kunze’s request for reconsideration did not specifically bring to the County’s attention any errors in the finding that in Ms. Kunze’s child care program “[o]n more than one occasion, a child was wrapped tightly in blankets and tied with blankets to the crib.” The County denied Mrs. Kunze’s requests for reconsideration by letter dated January 3, 2002.
9. Mrs. Kunze’s written disciplinary policies have not included spanking or any other kind of corporal punishment,[7] and she has maintained a “no spanking” policy since first being licensed.[8]
10. In June 2001, M.S. was a 3 year old child for whom Mrs. Kunze had been providing day care services since September 1999. The parents of M.S. were not dissatisfied with any aspect of those day care services until the spring of 2001. At that time, they believed that Mrs. Kunze was being more attentive to the needs of the infants and toddlers in her care than to her older children. So in June 2001, the parents of M.S. decided to change day care providers.[9]
11. The parents of M.S. had begun toilet training in March 2001. Mrs. Kunze was not involved with the toilet training of M.S. while the child was at her day care program. So the child normally wore diapers while at day care.[10]
12. June 7, 2001, was the last day that M.S. attended Mrs. Kunze’s day care program. When M.S. arrived at Mrs. Kunze’s home, M.S. was wearing underpants rather than a diaper. It was the first time that that had occurred.[11]
13. While at Mrs. Kunze’s day care program on June 7, 2001, M.S. had a toileting accident and urinated in the underpants being worn. Mrs. Kunze changed the child’s clothes.[12] While running to the bathroom after the toileting accident, M.S. had another accident in which the child tripped, fell, and was struck on the head by a nearby toy wagon. M.S. required medical attention after the second accident and required stitches.[13]
14. Following the injury to M.S.’s head, Mrs. Kunze called the child’s father to pick the child up. When asked why M.S. was wearing different clothes, Mrs. Kunze responded that the child had had a wetting accident. Later, when the child’s mother asked M.S. what had happened, the child responded “I had an accident and then I fell.”[14]
15. During the summer of 2001, M.S. appeared to become unusually upset when having toileting accidents.[15]
16. Sometime in September 2001, M.S.’s mother heard a spontaneous statement from her child that M.S. had had an accident at Mrs. Kunze’s house and that Mrs. Kunze had spanked M.S.’s butt.[16] M.S. made other such statements to the mother later during the fall of 2001.[17] In October 2001, M.S.’s grandmother also heard the child say, “I had an accident at Nana Pam’s, and she spanked my butt.”[18]
17. On November 8, 2001, M.S.’s mother called County Social Services and made a report of M.S.’s behavior and the statements the child had made during the summer and fall of 2001.[19]
18. On November 14, 2001, a licensing specialist for the County interviewed M.S. and the child’s mother at their home about what may have happened to M.S. June 7, 2001. During that interview, M.S. made no statements about being spanked by Mrs. Kunze.[20]
19. As a result of a further investigation, the County subsequently determined that Mrs. Kunze had employed spanking as a means of disciplining a child who had a toileting accident.[21] Finally, the County determined that on one occasion Mrs. Kunze had failed to intervene to prevent a child from knocking down a wooden mantle.[22]
20. As a result of the determinations described in Finding of Fact No. 19, Ms. Cunningham issued a Correction Order to Mrs. Kunze citing three rule violations.[23] Mrs. Kunze complied with that Correction Order on January 14, 2002.[24] With regard to the alleged spanking violation, Mrs. Kunze denied that the alleged incident ever occurred, and indicated that she had consistently practiced a no spanking policy.[25]
21. Sometime in mid-January 2002, the County proposed that the Department revoke Mrs. Kunze’s family day care license.
22. On February 8, 2002, the Department issued an Order of Revocation that revoked Mrs. Kunze’s family day care license in accordance with the County’s recommendation and for the following reasons:
On August 16, 2001, McLeod County Social Services received a report that you had tightly swaddled an infant and tied him/her to a crib in a sling. The report was investigated and McLeod County Child Protection determined that recurring maltreatment had occurred, based on the unreasonable confinement of at least one infant in care, on more than one occasion.
On November 8, 2001, McLeod County Social Services received another report alleging that you had spanked a child in care following a toileting accident. The report was investigated and it was determined that you did spank children for toileting accidents. During the course of the investigation, the licensor was made aware of another incident of concern. The licensor determined that approximately two years ago an incident occurred where the day care children were downstairs and a preschool-aged child knocked down a wooden mantel. You were upstairs and unable to intervene to protect children from harm. You were cited for these violations in a correction order dated January 8, 2002.[26]
23. Mrs. Kunze subsequently made a timely appeal of the Department’s decision to revoke her license, as well as the County’s maltreatment and disqualification determinations.[27] Ms. Kunze’s written appeal also did not specifically bring to the Department’s attention any errors in its finding that Ms. Kunze “had tightly swaddled an infant and tied him/her to a crib in a sling.”
24. Ms. Kunze’s appeal of the Department’s revocation order resulted in a contested case proceeding. The ALJ conducted an evidentiary hearing in that proceeding on July 10, and 11, 2002.
25. M.S., the child whom Ms. Kunze allegedly spanked, did not testify at the evidentiary hearing.
26. The hearing record contained insufficient indicia of reliability to establish by a preponderance of the evidence that M.S.’s statements about having been spanked by Ms. Kunze were credible and truthful.
27. Based on all of the evidence in the record, the hearsay statements of M.S., together with supporting evidence, did not possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs.[28]
28. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references.
29. The Memorandum that follows explains the reasons for these Findings of Fact, and to the extent that the Memorandum may contain additional findings of fact, including findings on credibility, the Administrative Law Judge incorporates them into these Findings.
30. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.
Based upon these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. Minnesota law gives the Administrative Law Judge authority to conduct proceeding and to make findings, conclusions, and a final order.[29]
2. All procedural requirements of law and rule have been fulfilled so that this matter is properly before the Administrative Law Judge.
3. The County is not a state agency within the meaning of MEAJA, so the ALJ is therefore not empowered to award fees and other expenses against the County.[30]
4. Ms. Kunze has the burden of proving by a preponderance of the evidence that the Department’s positions in revoking her family child care license and in making related determinations were not substantially justified.[31]
5. Ms. Kunze failed to establish by a preponderance of the evidence that the Department’s positions in revoking her family child care license and in making related determinations were not substantially justified.
6. The Department’s positions in revoking her family child care license and in making related determinations had a reasonable basis in law and fact, based on the totality of the circumstances before the contested case proceeding began and were therefore substantially justified.[32]
7. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
8. The Memorandum that follows explains the reasons for these Conclusions, and the Administrative Law Judge therefore incorporates that Memorandum into these Conclusions.
Based upon the these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED,
(1) The Affidavit of Karen Kieffer is STRICKEN from the record of this proceeding; [33] and
(2) That the application of Pamela Kunze for fees and other expenses is DENIED.
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Dated this |
8th |
day of |
January |
2003. |
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S/ Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Administrative Law Judge |
MEMORANDUM
Under MEAJA, an administrative law judge may award fees and other expenses only if “the position of the state was not substantially justified.”[34] [Emphasis supplied.] The legislature’s intent, as evidenced by the plain meaning of the statute, is that a party to an administrative contested case proceeding may not recover fees and other expenses against a county that is also a party to the proceeding.[35] The Department then takes that proposition a step further and argues that the MEAJA does not apply to the actions of a county that happens to be a party. It contends that since the maltreatment and disqualification determinations at issue here were made in the first instance by the County, Ms. Kunze may not obtain an award of fees and other expenses relating to the adjudication of those two issues. As a result, the Department reasons that, at best, Ms. Kunze would only be able to obtain an award in connection with the Department’s action in revoking her child care license. However, the Department then argues the MEAJA’s definition of “party” excludes from eligibility for an award of fees and other expenses “a person providing services pursuant to licensure.” And for these reasons, the Department contends that Ms. Kunze is not entitled to receive any kind of award under MEAJA as a matter of law.
Minn. Stat. § 15.471, subd. 6(c) provides that:
"Party" does not include a person providing services pursuant to licensure or reimbursement on a cost basis by the department of health or the department of human services, when that person is named or admitted or seeking to be admitted as a party in a matter which involves the licensing or reimbursement rates, procedures, or methodology applicable to those services.
For purposes of analysis, the ALJ assumes that the statute prevents an award of fees and other expenses to a party appealing a license revocation. But the ALJ also notes that even though the maltreatment and disqualification determinations at issue here were made in the first instance by the County, the Department expressly took action in affirming the maltreatment determination and in denying reconsideration of the disqualification determination. Thus, a legal question arises that neither party addressed—namely, whether or not Minn. Stat. § 15.471, subd. 6(c) should also be construed to prevent an award where a party is challenging denial of an appeal or reconsideration of underlying maltreatment and disqualification determinations. Since, however, the ALJ concludes that the Department’s positions with regard to maltreatment, disqualification, and license revocation were all substantially justified, it is unnecessary to decide whether or not Ms. Kunze is not entitled to receive any kind of award under MEAJA as a matter of law.
All three agency actions that were at issue in this proceeding ultimately turned on the question of whether or not Ms. Kunze maltreated children under care. The Department’s Order of Revocation was based almost exclusively on a disqualification[36] that was, in turn, based on a finding that she had committed maltreatment in two respects. First, the Department alleged that Ms. Kunze had spanked a child under care for toileting accidents.[37] Second, it alleged that she “had tightly swaddled an infant and tied him/her to a crib in a sling.”[38]
For purposes of the MEAJA, defines “substantially justified” means:
that the state's position had a reasonable basis in law and fact, based on the totality of the circumstances before and during the litigation or contested case proceeding.[39]
The Department’s position on maltreatment was substantially justified if it “could satisfy a reasonable person.”[40] Failure of a state agency to prevail on the merits in an administrative contested case proceeding does not by itself mean that its position was not substantially justified.[41] After considering the hearing record in this proceeding, the ALJ concludes that the Department’s positions on both alleged incidents of maltreatment were substantially justified within the meaning of the MEAJA.
First, the evidence to support the allegation that Ms. Kunze had spanked a child under care consisted of multiple, consistent, out-of-court statements of a three-year-old child. Neither party was able to present any extrinsic corroborating or impeachment evidence. So, the ALJ was faced with the task of making a credibility determination about a declarant who did not actually testify at the hearing. The ALJ did not find or conclude that the child had been untruthful. Rather, it was a situation where reasonable people could differ about whether or not the child had been truthful. The child’s mother and grandmother testified that based on their own experience with the child, it was their opinion that the child had been truthful. So, there were at least some indicia of reliability and, therefore, evidence to support the Department’s position. But after carefully weighing all of the evidence, the ALJ simply concluded that the indicia of reliability supporting the child’s testimony were insufficient to meet the preponderance standard. In short, this was a situation where the Department took a different, but reasonable view when making a difficult credibility determination. The ALJ therefore concludes that the Department’s reliance on a different view of witness credibility here amounts to substantial justification for its position within the meaning of the MEAJA.
Second, with regard to the allegation that Ms. Kunze “had tightly swaddled an infant and tied him/her to a crib in a sling,”[42] the ALJ found that the infant had not, in fact, been tied to the crib and that the Department had based that charge of maltreatment on a mistake of fact. Ms. Kunze argues that the failure of the County and the Department to ascertain that the child had not actually been tied to the crib was essentially negligent and inexcusable, and for that reason, the Department’s position on that particular charge of maltreatment was not substantially justified.
The Department’s position was based on an earlier maltreatment determination by the County, which stated that in Ms. Kunze’s child care program “[o]n more than one occasion, a child was wrapped tightly in blankets and tied with blankets to the crib.”[43] But at the hearing, neither party presented a clear account of how the infant had actually been swaddled and secured when both sides elicited direct and cross-examination of the witnesses. It was only when the ALJ specifically asked Ms. Kunze to give a demonstration of how she had swaddled and secured the infant in the crib that the mistake of fact became apparent to the ALJ. Finally, one could reasonably infer that Ms. Kunze herself did not realize that a mistake of fact had occurred until during or after the hearing. The Department’s February 8, 2002, Order of Revocation specifically indicated that that Ms. Kunze had “tied him/her to a crib in a sling.”[44] Yet there was nothing in the record indicating that Ms. Kunze previously made what turned out to be erroneous characterization a specific basis for reconsideration or appeal.[45] In short, the phrase had “tied him/her to a crib in a sling, ” as it appeared in the Order of Revocation was ambiguous. Each of the parties thought it meant something different. And the ambiguity was not resolved until the ALJ resolved it through a demonstration at the hearing. The mistake of fact that formed the basis for Department’s second charge of maltreatment was therefore an honest, inadvertent, and excusable one. And the ALJ therefore concludes that in light of that mistake of fact, the Department’s position on that second charge was also substantially justified.
B. H. J.
[1]
Minn. Stat, § 15.472. (Unless otherwise indicated, all references to
Minnesota Statutes are to the 2000 edition.)