OAH No. 7-1800-15483-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF HUMAN SERVICES

 

 

In the Matter of the Temporary                                   FINDINGS OF FACT,

Immediate Suspension of the Family                           CONCLUSIONS, AND      

Child Care License of Angela A. Lindsey                     RECOMMENDATION

 

          This matter came on for Hearing before Administrative Law Judge (ALJ) Richard C. Luis on August 27, 28, and 29, 2003, at the Chisago County Government Center, 313 North Main Street, Room 106, Center City, MN.  The hearing record closed on September 22, 2003, after the parties filed written closing arguments and responses.

 

          Alfred S. Alliegro, Assistant Chisago County Attorney, 313 North Main Street, Room 373, Center City, MN 55012-9663, appeared for the Chisago County Department of Health and Human Services (County) and the Minnesota Department of Human Services (Department).

 

          Scott W. Swanson, Attorney at Law, 2145 Woodlane Drive, Suite 101, Woodbury, MN 55125, appeared for Angela Lindsey (Licensee).

 

NOTICE

 

This Report is a recommendation, not a final decision.  The Commissioner of Human Services will make a final decision after reviewing the administrative record, and may adopt, reject or modify these Recommendations.  Under 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.  An opportunity must be afforded to each party adversely affected by the Report to file exceptions and present argument to the Commissioner.  Parties should contact Kevin Goodno, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155 to ascertain the procedure for filing exceptions or presenting argument.  If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2.  The record closes upon the filing of comments, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

 

 

STATEMENT OF ISSUE

 

          Should the temporary immediate suspension of Angela Lindsey’s family child care license remain in effect because there is reasonable cause to believe that there is an imminent risk of harm to the health, safety or rights of children in the license holder’s care?

         

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

 

FINDINGS OF FACT

 

1.               Angela Lindsey is a resident of Chisago County, licensed as a Family Child Care Provider since November 2000.[1]  She provides child care at her home in Wyoming, MN.[2]  Ms. Lindsey’s family consists of her husband, Tim Lindsey, and two children, Lamia (age 11) and Taya (age 4).

2.               Licensee cares for eight children ranging from infant to school age.  The residence is a split-level home and the business is confined to the lower level.  Tim Lindsey does not play a role in the child care business.  He leaves for work each morning between 5:45 and 6:00 a.m., before any day care children arrive, and returns home around 4:30 p.m. or later, at which time he periodically has limited interactions with the day care children.[3] 

3.               In October of 2002, two day care families made complaints against Ms. Lindsey, alleging that Tim Lindsey had physically abused one child and sexually abused another.[4]  One complaint arose within one week after Tim Lindsey suggested strongly that the day care father, who had been swearing around the children during a pick-up, clean up his language.  The father did not appreciate Tim Lindsey’s suggestion and subsequently withdrew his child from Ms. Lindsey’s day care.  Within one week of the confrontation, the father alleged that a bruise on his son’s chin had occurred at the hands of the Lindseys.  The second complaint arose after Ms. Lindsey asked a day care mother with an outstanding bill when she could expect payment.  Within one week, the mother removed the child from Ms. Lindsey’s day care and alleged that Mr. Lindsey had inappropriately touched her child.  By letter dated October 24, 2002, the County determined, based upon a preponderance of the evidence, that neither physical nor sexual abuse had occurred in connection with either complaint and that child protective services were not needed.[5]

4.               In March of 2003, Jennifer Norton, desiring to return to work after a three-month maternity leave, conducted a search of local child care providers.  Based on a recommendation from the County, she and her husband John Norton found that Angela Lindsey had an opening for an infant, and on March 13, 2003, Angela Lindsey began caring for Jennifer Norton’s two boys, J.N. (22 months) and B.N. (3 months).[6] 

5.               Angela Lindsey noted that J.N. and B.N. were large children, and, specifically, that B.N. had a disproportionately large head.  During the first two to three weeks in Angela Lindsey’s care, J.N. experienced some separation anxiety, which eventually resolved.  Angela Lindsey observed that B.N. frequently spit up his formula, and Jennifer Norton informed her that B.N.’s doctor had prescribed acid reflux medication, which Ms. Lindsey would not have to administer.  After a few weeks, B.N. began retching and vomiting while being fed.  This concerned Angela Lindsey and she called Jennifer Norton to inform her each time it occurred. 

6.               Jennifer Norton, employed at Advanced Respiratory as a Reimbursement Coordinator, worked from 8:00 a.m. until 4:30 p.m.  She also worked out of the home as a consultant for Discount Bridal Service selling wedding dresses.  On average, this job occupied one to two hours per day.  John Norton worked from 6:00 a.m. until 2:30 p.m. at St. Croix Stone packing orders of cement.  Prior to this position, Mr. Norton was a personal care attendant for one male patient.  He opted out of this type of work when the patient no longer needed his care services.  Mr. Norton was frustrated making less money working for St. Croix Stone, and his 90-day performance review was continually rescheduled, delaying any possible pay raise.  Furthermore, in fall of 2000, the Nortons began remodeling their home to add two stories.  Mr. Norton worked on this project most days after work and one day each weekend.[7]  

7.               On April 6, 2003, John Norton’s father passed away somewhat unexpectedly.[8]  The extended family gathered together the following week to make funeral arrangements and attend the service.  The Norton children spent some time with various extended family members.  John Norton was devastated by the loss of his father. 

8.               Early in April, around the time of the events detailed in the preceding finding, B.N. began vomiting approximately twice each day and he became increasingly lethargic, sleeping much of each day.  Over the next couple of weeks, these symptoms continued every few days and Jennifer Norton took B.N. to see his doctor on several occasions.[9]  His doctor attributed B.N.’s illness to a sick cousin who was present in the Norton house around the time of the funeral and prescribed the infant antibiotics. 

9.               At B.N.’s four-month well child visit, on April 18, 2003,[10] it was documented that B.N. was tired, fussy, and vomiting.  On April 23, 2003, Jennifer Norton brought B.N. into the doctor again and a head and upper gastro-intestinal tract ultrasound was obtained.[11]  The ultrasound showed extra-axial fluid, but the doctor labeled it benign.    

10.           During the month of April, the Nortons and Angela Lindsey began to notice that B.N.’s head seemed to be growing more rapidly in relation to the rest of his body.  Over the Easter holiday, on April 20, 2003, the Norton’s extended family commented on the disproportionately large size of B.N.’s head. 

11.           Near the end of April, Angela Lindsey reported to the Nortons that J.N. had fallen onto the lower half of B.N.’s body while Angela Lindsey changed B.N.’s diaper on the floor.  It is not clear whether J.N. fell onto his brother from over Licensee’s shoulder or whether J.N. was running across the floor toward B.N. and tripped over his own feet.  Within the days following the accident, Jennifer Norton and Ms. Lindsey noted that B.N. was not moving his right leg and that he winced and cried each time his ankles were held during a diaper change.  Jennifer Norton informed B.N.’s doctor of the injury over the phone on May 1, 2003, and the doctor did not see the necessity of a formal exam of B.N.’s leg.

12.           B.N.’s six-month well child check took place on June 25, 2003, at which time the doctor expressed concern at the significant enlargement of B.N.’s head and ordered a head MRI for July 2, 2003.[12] 

13.           The results of the MRI led Dr. Mark Hudson, a Child Abuse Fellow at Midwest Children’s Resource Center (MCRC), to request an interview with the Nortons on July 3, 2003.  The MRI showed “moderately large, fairly symmetrical bilateral subdural hematomas over both cerebral hemispheres.  The subdural hemorrhages consist of two separate layers of signal intensity on both sides.  These findings suggest subdural hemorrhages of different ages.  Radiology note[d] that the most likely etiology would be related to trauma.”[13]  Dr. Hudson further noted that B.N.’s head appeared large in comparison to his body.  Furthermore, a skeletal survey obtained on July 3, 2003, revealed a right mid-shaft femur fracture that was approximately six to eight weeks old.  The nature of the two unexplained injuries led Dr. Hudson to conclude that child abuse had likely occurred and he initiated a County child protection investigation.[14]  Dr. Hudson referred the Nortons to a pediatric neurosurgeon for further treatment of B.N.’s internal head injuries.   Based upon Dr. Hudson’s assessment of and conversation with the Nortons, he allowed them to take B.N. home.

14.           As a result of Dr. Hudson’s report to County child protection, an Emergency Response Team (ERT) consisting of Linda Duerkop, County Human Services Supervisor; Chuck Casey, Intake Worker; Kathy Pack, Child Protection Case Manager; Lanay Webb, Childcare Licensor; Susan Drebek, Assistant Chisago County Attorney; and Tracy Armistead,[15] County Sheriff’s Investigator met on July 8, 2003.[16]  The ERT discussed the Intake Report from MCRC, potential perpetrators, and a list of individuals to be interviewed in connection with the case.  Due to the severity of B.N.’s injuries, the prior complaints against Tim Lindsey, and the County’s worry regarding liability, the ERT decided to recommend suspension of Angela Lindsey’s child care license.  Following the ERT meeting, Tracy Armistead and Kathy Pack drove to Angela Lindsey’s house, found her not at home, and left her a message to contact them as soon as possible.  Angela Lindsey returned the call that afternoon and scheduled an interview at her home for the following afternoon. 

15.           By letter dated July 8, 2003, Lanay Webb informed Angela Lindsey of B.N.’s injuries and explained that the ERT decided the injuries might have occurred in Ms. Lindsey’s child care.[17]  The letter further stated that all of B.N.’s caregivers would be interviewed.  As a result, and pursuant to the County Attorney’s recommendation, Ms. Webb directed a request to the Department for negative action against Angela Lindsey’s license in the form of an immediate suspension.[18]  The ERT placed great weight on the MCRC doctor’s opinion that the abuse probably did not occur at home, that B.N. was sent home with his parents, and that the Nortons had no child protection history.[19]

16.           On July 9, 2003, Tracy Armistead, Kathy Pack and Lanay Webb interviewed Angela Lindsey at her home.[20]  Ms. Lindsey recalled B.N. throwing up and sleeping a lot beginning in late March or early April.   She also described the circumstances surrounding J.N. falling on B.N.’s leg.  Further, Angela Lindsey explained how she was somewhat concerned about the size of B.N.’s head and tried to show her concern to Jennifer Norton through gentle questions and inquiries without seeming overly critical.  Finally, Ms. Lindsey informed the interviewers of an instance where B.N. had been on the floor and had rolled over and bumped his head on a wooden chair leg, which resulted in a small bruise on B.N.’s temple.  As was her general practice, Angela Lindsey informed Jennifer Norton about the bump.  Following the interview, Ms. Webb spoke to Angela Lindsey, stating her belief that an immediate suspension would likely not be issued.[21]

17.           Ms. Armistead, Ms. Pack, and Ms. Webb also interviewed Jennifer Norton on July 9, 2003.[22]  Ms. Norton summarized B.N.’s medical history and corroborated Angela Lindsey’s statements regarding B.N.’s right leg injury in late April.  The interviewers questioned Jennifer Norton about who else, besides Angela Lindsey, cares for her children, and whether she could think of any occurrence in the Norton home that would have caused the head and leg injuries.  Jennifer Norton explained how on limited occasions either her or her husband’s parents would care for J.N. and B.N.[23]  They also discussed John Norton’s temper and whether the Nortons had seen Tim Lindsey present at the day care during business hours. 

18.           Lanay Webb and Kathy Pack spoke later that day regarding the investigation and agreed that John Norton, Tim Lindsey and the Lindsey children would be interviewed next, followed by Angela Lindsey’s child care parents.[24] 

19.           On July 10, 2003, Traci Armistead began calling some of Angela Lindsey’s child care parents.  She inquired about the care provided by Ms. Lindsey, whether Tim Lindsey was present during day care hours, and about B.N.[25]  The parents never see Tim Lindsey when dropping off their children and only rarely see him in the afternoon when picking up their children.[26]  Tim Lindsey has not been observed providing direct care for the day care children.

20.           On July 10, 2003, the Department issued Angela Lindsey an Order of Temporary Immediate Suspension, pursuant to Minn. Stat. § 245A.07.[27]  The letter informed her of her right to appeal and her right to a contested case hearing. 

21.           Based upon a request from Tracy Armistead, Drs. Kaplan and Hudson submitted an addendum to the Physical Abuse Consultation regarding the approximate dates of B.N.’s injuries.[28]  Citing B.N.’s clinical course, head measurements, and MRI, the doctors estimated that the head injury likely occurred in early April 2003 as a result of being shaken.  And based upon B.N.’s clinical course and radiographic studies, the leg injury likely occurred on or about May 1, 2003.  Drs. Kaplan and Hudson stated that “[h]is fracture is consistent with significant trauma and is not consistent with his 2-year old sibling falling on him.”

22.           On July 23, 2003, B.N. underwent a neurosurgery examination with Dr. Partington at Gillette Children’s Hospital, who recommended the placement of a subdural shunt to prevent further intracranial pressure until such time as B.N.’s brain size catches up to his skull size.[29]  The Norton’s consented to the operation, which was performed on August 1, 2003, with no complications.[30]  

23.           As of August 29, 2003, the Lindsey children, and some of the child care parents had not been interviewed.   

24.           Many of Angela Lindsey’s child care parents attest to her loving, caring, nurturing and responsible nature as a child care provider.[31] 

25.           Angela Lindsey appealed the temporary immediate suspension of the license.  The Department issued a Notice of and Order for Hearing on July 11, 2003, setting the hearing to take place on July 30, 2003.  The hearing date was subsequently changed to August 27, 2003.  Counsel agreed to keep the record open after the hearing to file final arguments in writing, in lieu of oral arguments at the conclusion of the testimony. 

 

 

CONCLUSIONS OF LAW

 

1.       The Administrative Law Judge and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50, 245A.07 and 245A.08.

 

2.       The Department gave proper notice of the hearing, and all relevant substantive and procedural requirements of law or rule have been fulfilled.

 

3.               Pursuant to Minn. Stat. § 245A.07, subd. 2, “[i]f the license holder’s actions or failure to comply with applicable law or rule poses an imminent risk of harm to the health, safety, or rights of persons served by the program, the commissioner shall act immediately to temporarily suspend the license.”

4.               At a hearing regarding a licensing sanction under Minn. Stat. § 245A.07, 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.[32]

5.               The Administrative Law Judge is limited to the determination of “whether the temporary immediate suspension should remain in effect pending the commissioner’s final order under section 245A.08.”[33]

6.               The Department must demonstrate “reasonable cause exists to believe that the license holder’s actions or failure to comply with applicable law or rule poses an imminent risk of harm to the health, safety, or rights of persons served by the program.”[34]

7.               The Department failed to demonstrate reasonable cause for the temporary immediate suspension or that the suspension should remain in effect pending a final order because there is a risk of imminent harm to the health and/or safety of children served by Licensee.

8.               The attached Memorandum is incorporated by reference.

 

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

 

RECOMMENDATION

 

          IT IS RECOMMENDED: That the temporary immediate suspension of Angela Lindsey’s Family Child Care license be lifted during the pending investigation.

 

          Dated:  October   6   2003

 

 

                                                            /s/ Richard C. Luis

                                                            __________________________

                                                            RICHARD C. LUIS

                                                            Administrative Law Judge

 

NOTICE

 

          Pursuant to Minn. Stat. § 14.62, subd. 1, the Minnesota Department of Health is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

 

Reported:  Tape recorded (7 tapes).  No transcript prepared.

 

 

MEMORANDUM

 

          The Department has the burden of showing that there is reasonable cause to believe that the health, safety, or rights of the children in care are in imminent danger.  Requiring only a showing of “reasonable cause” is intended to ensure that vulnerable children are protected until there can be a full hearing and a final determination.

 

          The County, on behalf of the Department, must present reliable oral testimony or reliable documentary evidence in support of a finding of reasonable cause.  Reasonable cause to suspend a license is not specifically defined in the statute, but it is analogous to the probable cause standard in a criminal proceeding.[35]  Probable cause is defined as “a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances.”[36]  In such cases the State is entitled to rely on hearsay evidence linking the license holder (or someone who resides with her) to an act that puts children in care at risk of imminent harm.  “Imminent harm” is also not defined in the statute, but the Department has defined “imminent danger” to mean that a child is threatened with immediate or present abuse or neglect that is life-threatening or likely to result in abandonment, sexual abuse, or serious physical injury.[37]  While this definition of imminent danger is not binding, it is instructive.  At a minimum, “imminent harm” means harm that is impending or about to occur.[38]

 

          The County’s burden, while not a heavy one, is not negligible and does not shift to the Licensee.  Angela Lindsey herself does not bear the burden of convincing the County or the ALJ that B.N.’s injuries did not occur at her day care absent reasonable cause being shown.  Nevertheless, she has testified that neither she nor her husband inflicted these injuries on B.N. and that she expressed concern to Jennifer Norton about B.N.’s head size and continuing illness.  Many of her day care parents have testified and submitted letters in support of Angela Lindsey, expressing their desire to return their children to her day care despite these allegations.    Additionally, Angela Lindsey is taking courses in child development, and she enjoys applying these principles to her own children, as well as her day care children.  Angela Lindsey was diligent about reporting accidents, illnesses, bumps, and bruises to the children’s parents.  And none of the older day care children have ever indicated to their parents that Angela or Tim Lindsey engaged in abusive behavior at the day care.  Both Angela and Tim Lindsey have been cooperative throughout the process, and both gave credible testimony at the hearing.  Furthermore, the Lindseys have explained the retaliatory circumstances surrounding the two past allegations that ultimately were unfounded.  

 

None of the evidence, oral or documentary, submitted by the County is sufficiently reliable to support a reasonable suspicion that these injuries occurred at Ms. Lindsey’s day care.  The evidence submitted by the County documents the injuries to B.N., but in no way points directly to Angela Lindsey’s day care as a place where children are in imminent danger.  It is undisputed that the injuries to B.N. occurred, but no witness could say with any degree of certainty where these injuries happened.  The MCRC doctors made their preliminary determination to send B.N. home with his parents after hearing only the Norton’s account of events. The County’s substantial reliance on this preliminary determination is of concern to the ALJ.

 

Tim Lindsey is at the center of this investigation, but there is no reliable evidence to suggest that he caused B.N.’s injuries.  Tim Lindsey was at the home during day care hours only limited periods of time, if at all.  When he was there, and if he happened to be near the children, it was only in the presence of Angela Lindsey.  She testified that these injuries did not occur at her home day care, and no evidence has been submitted to contradict that statement.  The mere fact that Tim Lindsey lives in the home, and is sometimes present there at the end of the afternoon while children are being picked up, does not create a reasonable suspicion that he harmed B.N. or any other day care children.

 

The ERT decided to recommend a temporary immediate suspension of Angela Lindsey’s license on the day of its meeting even before the Lindseys had been interviewed.  In doing this, the County showed no interest in the Nortons and the stressors in their family life during the relevant time of early-April to early-May.  The interview of Jennifer Norton on July 9, 2003, focused largely on Angela and Tim Lindsey.  In fact, Mr. Norton was likely under significant physical, emotional, and mental stress during the time when B.N.’s injuries are estimated to have occurred.  Furthermore, the Norton’s family spent extended time with B.N. at the time of John Norton’s father’s funeral around April 9, 2003, and again later that month for Easter.  The County appeared not to consider adequately these possibly relevant facts.  In regard to John Norton, he did not testify at the hearing, and thus, the ALJ did not have an opportunity to judge his demeanor or credibility in regard to B.N.’s injuries.  This record does not, of course, allow any conclusions concerning Mr. Norton.  Similarly, the ERT did not speak with any of the day care families besides the Nortons before making its decision to recommend suspension of the license on July 8, 2003.  It seems the positive comments that Tracy Armistead received from some of the parents on July 9 and 10, 2003 were not considered.

 

The County seems to rely on the fact that the investigation is on-going and a perpetrator has not yet been identified as a basis for the temporary immediate suspension, opting to take the risk of erring on the side of caution while the investigation is pending.  In proceeding that way, the County may protect itself from liability until it finds reliable evidence against the Lindseys or until it eventually explores the possibility that another individual inflicted the injuries on B.N.  However, that posture is not supported by a factual or circumstantial basis in the record sufficient to establish reasonable cause that harm to Angela Lindsey’s day care children is imminent.

 

 

                                                            R.C.L.