15-1800-15588-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF HUMAN SERVICES

 

In the Matter of the Family Child Care Application of Rosezetta Lewis

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

 

          This matter came on for hearing before Administrative Law Judge Beverly Jones Heydinger at 9:30 a.m. on November 12, 2003, at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis, MN.  David MacMillan, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 560, Saint Paul, MN 55102, appeared on behalf of the Department of Human Services.  Rosezetta Lewis, 757 Jessamine Ave. E., Saint Paul, MN 55106, appeared on her own behalf. 

NOTICE

This report is a recommendation, not a final decision.  The Commissioner 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.  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 this 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 learn 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. 2a.  In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, 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.

 

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.

 

STATEMENT OF ISSUES

          Was Rosezetta Lewis properly denied a family child care license because of the disqualification of a person living in her home?

Recommendation:  That the Department’s decision to deny the license be AFFIRMED.

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

          FINDINGS OF FACT

1.               Ms. Lewis applied for a family child care license from Ramsey County Community Human Services Department on September 18, 2002.  Ms. Lewis wanted to provide care to children in her home at 757 Jessamine Avenue East, Saint Paul, MN.[1]

2.               As part of the application process, Renay Strenger, Licensing Social Worker for Ramsey County, conducted a background check on Ms. Lewis and all household members over the age of 13.[2]  This included Ms. Lewis and her husband, Anthony Lewis. 

3.               The background check revealed that Mr. Lewis had been convicted in 1998 of fifth degree domestic assault, a misdemeanor, in violation of Minn. Stat. §§ 609.2242, 609.2243.[3]  The sentence was apparently discharged upon completion of a domestic violence awareness course on January 30, 1999.[4]

4.               Mr. and Ms. Lewis continue to live together in the home where Ms. Lewis would like to offer child care.[5]

5.               The Ramsey County Attorney’s Office reviewed the police reports and found by a preponderance of the evidence that Mr. Lewis did commit a domestic assault in 1998.  The assistant county attorney notified Ms. Strenger that this offense required the disqualification of Mr. Lewis for ten years.[6]

6.               Mr. Lewis’ conviction for a misdemeanor, supports disqualification for seven years.[7]  The Department did not offer evidence to support disqualification for ten years. 

7.               Ms. Strenger conducted a Risk of Harm analysis and concluded that Mr. Lewis posed an intermediate risk of harm to those served in family child care.[8]

8.               On February 25, 2003, Ms. Strenger notified Mr. and Ms. Lewis of the disqualification in separate letters, and informed them of the right to request reconsideration of the disqualification.[9]

9.               By letters dated March 3, 2002 (sic), Mr. and Ms. Lewis requested reconsideration.  However they did not complete the Request for Reconsideration form that had been sent to them.  Mr. Lewis requested an opportunity to meet with Ms. Strenger to explain the changes in his life.  Ms. Strenger sent a second copy of the form.  It was completed and submitted on April 29, 2003.[10]  Because of the prior request for reconsideration, Ms. Strenger considered the request to be timely.[11]

10.           On May 2, 2003, Ms. Strenger sent the background study and request for reconsideration to the Department of Human Services.  In her letter, she recommended that the disqualification not be set aside and no variance granted.[12]

11.           On July 8, 2003, Ms. Strenger sent a letter to the Department of Human Services recommending that Ms. Lewis’ application of a family child care license be denied because of the disqualification of Mr. Lewis.  She relied upon the language of Minn. R. 9502.0335, subp. 6, which states that a license shall not be issued if the applicant or any other person living in the day care residence has a disqualification under Minn. R. 9543.3070.  The letter also states that the County had been notified on July 1, 2003 that the Department of Human Services had denied the request for reconsideration and denied a variance to the disqualification.[13]

12.           By letter dated August 22, 2003, the Department of Human Services notified Mr. Lewis that his request for reconsideration had been denied, and informed him of his right to appeal that decision.[14]  In a separate letter dated August 22, 2003, the Department of Human Services notified Ms. Lewis that her application for a family child care license was denied because of the presence in the home of a person with a disqualifying criminal conviction.  Ms. Lewis was informed of her right to request a contested case hearing to challenge the denial of her application.[15]

13.           Mr. Lewis is employed by UPS.  He has regular contact with the public.[16]  Since the assault conviction, Mr. and Ms. Lewis have become active members of their church.  Ms. Lewis demonstrated her involvement in the community, including involvement in child development programs.[17]  She also presented letters from persons who support her license application and would benefit from the care she would like to provide.[18]  Ms. Lewis has also received certificates of appreciation from agencies where she has volunteered, including St. Olaf Retirement Communities, Camp Sunrise, Head Start, and from the Secretary of State for her volunteer ministry to the Minnesota State Prisons.[19]  Ms. Lewis has also served on the Policy Council for Head Start, and completed a Public Policy Leadership Training Program sponsored by Family Service, Inc. of Saint Paul, and the Ramsey Action Programs.[20]  Mr. Lewis testified to the changes he had made since his conviction, including the successful completion of a court-ordered anger management program.

14.           The Reverend Floyd Beecham, the couple’s pastor, spoke highly of both Mr. and Ms. Lewis, their dedication to the church and community, their care for children, and the confidence he had that Mr. Lewis poses no threat to children.  In particular, Pastor Beecham stressed Mr. Lewis’ active involvement with church youth.  Pastor Beecham and his wife know both Mr. and Ms. Lewis well, and have the utmost confidence in them and their reliability and integrity.[21]

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

CONCLUSIONS

1.               The Administrative Law Judge and the Commissioner of Human Services are authorized to consider appeal of the denial of a family child care license, pursuant to Minn. Stat. §§ 245A.05, 245A.07, subd. 3(a), 254C.28, and 14.50. 

2.               Ms. Lewis received due, proper and timely notice of the basis for the agency’s decision, and of the time and place of the hearing.  This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3.               The Department has complied with all relevant substantive and procedural legal requirements.  The applicant for a license has the burden of demonstrating by a preponderance of the evidence that she meets all the requirements for a license.[22]

4.               A background study must be conducted on the applicant and any individual age 13 and over living in the household where the licensed program will be provided.[23]

5.               The commissioner of human services may disqualify an individual if less than seven years have passed since the discharge of the sentence imposed for the offense, and the individual was convicted of certain misdemeanor offenses, including Minn. Stat. §§ 609.2242 (domestic assault).[24]  The Department demonstrated by a preponderance of the evidence its basis for disqualification for seven years.  It has not proved its basis for disqualification for ten years.  As required by Minn. Stat. § § 245A.04, subd. 6 and 245C.16, the commissioner considered the information provided by Mr. Lewis, applied the review criteria set forth in the statute, and made a determination that the individual posed an immediate risk of harm to persons served by the licensed program.

6.               The Commissioner considered Mr. Lewis’ request for reconsideration as required by Minn. Stat. § 245C.22.  The decision to deny reconsideration is supported by a preponderance of the evidence.

7.               The Commissioner’s decision not to grant a variance to the disqualification, as permitted under Minn. Stat. § § 245A.04, subd. 9 and 245C.30, is supported by a preponderance of the evidence.

8.               The commissioner has the authority to deny a child care license when the applicant or anyone living in the home for which the license has been applied has been disqualified because he or she was convicted of a crime set forth in Minn. Stat. § 245C.15.[25]

Based upon the foregoing Conclusions, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

 

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Commissioner of Human Services decision to deny Rosezetta Lewis’s application for a family child care license be AFFIRMED.

 

Dated this 9^th day of December, 2003.

                                                                

S/ Beverly Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

Tape recorded (three tapes)

 

MEMORANDUM

          The Department acted within its authority when it denied Ms. Lewis’s application for a family child care license.  Its duly promulgated rule states that an applicant shall not be issued a license if an individual living in the day care residence has been disqualified pursuant to Minn. Stat. § 245A.04, subd. 3d, which in turn refers to the list of disqualifying offenses in Minn. Stat. § 245A.15.

  It is not disputed that Mr. Lewis committed a disqualifying offense.  However, he challenged the determination that he continues to present any threat to children being cared for in his home.  Accordingly, he requested reconsideration of the disqualification.  The Department of Human Services has the discretion to consider the degree of harm that the individual presents to the persons cared for in the licensed program.[26]  In this instance, it considered the information submitted but did not reverse the disqualification or grant a variance.  In so doing, the Department did not abuse its discretion; its decision was based on the factors set forth in statute and rule, and, although reasonable minds may differ, its decision was neither arbitrary nor capricious.

However, the evidence shows that the Assistant County Attorney miscalculated the length of the disqualification.  It is undisputed that Mr. Lewis was guilty of a misdemeanor offense.[27]  He should be subject to the seven-year disqualification rather than the ten-year disqualification that was applied.  Compare Minn. Stat. § 245C.15, subds. 3 and 4.  It is unclear from the record whether the Assistant County Attorney determined that a higher level of offense was demonstrated by a preponderance of the evidence, but there was no evidence presented at hearing to support the more serious sanction.  Ms. Lewis did not contest that her husband had a misdemeanor conviction.  There were no court records introduced into evidence that show the conviction or sentence entered.

Mr. and Ms. Lewis made a strong case that their lives have changed significantly since Mr. Lewis’ domestic abuse conviction.  Their involvement with their church and the community, including Head Start, prison ministries and youth activities, are noteworthy.  At the hearing, they provided additional information about the changes in their life since 1998 when the disqualifying offense occurred, and the efforts each one of them has made to strengthen their marriage.  In addition, both have become actively involved with the community and their church, giving generously of their time, and receiving the support of the friends that they have made.  In addition, Ms. Lewis has participated in Early Child and Family Education (ECFE), volunteered with Head Start, and ministered to prisoners.  Mr. Lewis has been an excellent employee of UPS, and had no difficulty relating to the public in the course of his employment.  Both fervently believe that Mr. Lewis poses no current danger to anyone, and that Ms. Lewis would be an excellent child care provider.  The Department may consider this information in reaching its decision. 

          It is possible that the additional information provided at the hearing might have influenced the Department’s reconsideration of the disqualification if it had been presented at that time.  Reasonable minds could differ over the appropriateness of the disqualification or a variance to it.  However, based on the evidence available to it, one cannot conclude that the Department failed to comply with the applicable statutes or rules, or abused its discretion in concluding that disqualification was appropriate.

          So long as the disqualifying individual remains in the home, the statute clearly requires that the license must be denied.  Accordingly, the Department’s decision is affirmed.

           

                                                            BJH