OAH No. 12-1800-15612-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF HUMAN SERVICES

 

 

In the Matter of the Revocation of the                         FINDINGS OF FACT,

Family Foster Care License of                                    CONCLUSIONS, AND      

Kathy Schewe                                                           RECOMMENDATION

 

          This matter came on for Hearing before Administrative Law Judge Steve M. Mihalchick on January 7, 2004, at Brown County Family Services, 1117 Center Street, New Ulm, MN.  The hearing record closed at the conclusion of the hearing.

 

          James Olson, Brown County Attorney, 519 Center Street, New Ulm, MN 56073, appeared for Brown County Family Services (BCFS) and the Minnesota Department of Human Services (Department).

 

          Kathy Schewe (Licensee), 10 West Maple, #3, Springfield, MN 56078, appeared pro se.

 

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 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 Department 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 ISSUE

 

          Whether sanctions should be imposed upon Licensee’s restricted family foster care license because of her failure to notify BCFS of a change in her household and failure to initiate a background study on the individual residing with her?

         

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

 

FINDINGS OF FACT

 

1.               Licensee is a resident of Brown County.  She has three grandchildren from a daughter residing in Lyon County.  Early in 2002, Lincoln, Lyon, and Murray County Human Services (LLMCHS) initiated a Child in Need of Protective Services (CHIPS) petition to remove Licensee’s 12-year-old granddaughter from her daughter’s residence in Lyon County.[1]  In February, 2002, LLMCHS placed the 12-year-old girl in respite care in her grandmother’s (Licensee’s) home.[2]  In June, 2002, Licensee applied for a restricted foster care license for the purpose of taking care of her granddaughter on a long term basis, which BCFS granted.[3]

2.               In May, 2003, Licensor Denise Kamm of BCFS relicensed Licensee, according to the applicable rules, following her initial year long probationary period.  As of May 30, 2003, Ms. Kamm had no concerns about Licensee’s compliance with the terms of her foster care license.[4]

3.               On May 30, 2003, Joanne Steinbach, the  social worker from LLMCHS in charge of the granddaughter’s case, made a drop in visit to Licensee’s home.  According to her later report to Ms. Kamm, Ms. Steinbach discovered that a man named David A. Moe was living in Licensee’s home.  Upon further questioning by Ms. Steinbach, Licensee noted that Mr. Moe had past problems with the law.  Ms. Steinbach notified Ms. Kamm, who was not aware of this change in household, and therefore, had not completed a background study on the individual.  Through further inquiry, Ms. Steinbach learned that, on April 7, 2003, the Department had granted a variance from the disqualification to allow Mr. Moe to be employed in a group home.[5] 

4.               On June 11, 2003, LLMCHS obtained a court order from Lyon County and removed the granddaughter from Licensee’s home based upon Mr. Moe’s past criminal behavior and reported difficulty obtaining complete information from Mr. Moe, including past addresses.[6] 

5.               On June 12, 2003, Ms. Kamm visited Licensee about Mr. Moe’s residence in the home.  Licensee was not aware that she was required to report the addition to her household and was willing to do whatever was required of her.  Ms. Kamm presented Licensee with the appropriate forms to be completed by Mr. Moe to initiate a background study for each county in which he has resided, and explained how failure to complete the forms could result in a revocation of her foster care license to care for her granddaughter.  Before leaving, Ms. Kamm issued Licensee a correction order for failing to notify BCFS of a change in her household and failing to initiate a background study on Mr. Moe, citing Minn. R. 9545.0070 and Minn. Stat. § 245A.04, subd. 3.[7]

6.               Subsequently, Licensee discussed the issue with Mr. Moe and told him to complete the form or move out of her house.  On June 27, 2003, Ms. Kamm received one completed release form directly from Mr. Moe, who had filled out the form and mailed it without showing it to Licensee.  Ms. Kamm could not process the form due to Mr. Moe’s failure to fill it out correctly, specifically his failure to write complete addresses of his prior residences.[8]  Ms. Kamm did not follow up with Licensee or Mr. Moe to obtain complete addresses because LLMCHS was pursuing the issue on its own and had ultimate control over the outcome of the granddaughter’s placement.  LLMCHS reportedly continued to experience difficulty in tracking down Mr. Moe’s past addresses and informed Licensee that her granddaughter would not be placed with her again. 

7.               On or about July 31, 2003, LLMCHS notified Ms. Kamm of Mr. Moe’s criminal convictions between 1997 and 2001, which included fifth degree assault and multiple violations of orders for protection.[9]  Based upon this information and the violations noted in the correction order, Ms. Kamm made a written recommendation to the Department that Licensee’s license be revoked for failing to notify BCFS of a change in household and failure to have a background study completed on David Moe.[10]

8.               On August 13, 2003, Mr. Moe passed away.  The following day, after unsuccessfully trying to reach Ms. Steinbach, Licensee reported the death to her granddaughter’s guardian ad litem in Lyon County.[11] 

9.               On October 1, 2003, the Department issued an Order of Revocation to Licensee, largely for the reasons set forth in Ms. Kamm’s recommendation.  However, the Department cited Minn. R. parts 9545.0090 and 9545.0100, instead of Minn. R. 9545.0070 as cited in Ms. Kamm’s correction order.[12]  The letter informed Licensee of her right to appeal and her right to a contested case hearing. 

10.           Licensee appealed the revocation by letter dated October 6, 2003, in which she noted Mr. Moe’s death and explained that BCFS did not adequately communicate with her regarding the revocation, and that she ultimately learned of the revocation through Lyon County.[13] The Department issued a Notice of and Order for Hearing on October 15, 2003, setting the hearing to take place on January 7, 2004.

11.           On October 31, 2003, Ms. Kamm called Ms. Steinbach to follow up on the matter.[14]  Neither of them had been in contact with Licensee for approximately three months.  Ms. Steinbach reiterated that Licensee’s granddaughter would not be returned to Licensee.  However, Ms. Steinbach did call Licensee and offer to have the granddaughter stay with Licensee over the holidays.  Licensee agreed to do so and enjoyed the temporary arrangement for the holidays.[15]

 

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 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.04, subd. 3 (2002), the Commissioner of Human Services shall conduct a background study on “(2) an individual age 13 and over living in the household where the licensed program will be provided . . . and (6) an individual who, without providing direct contact services at a licensed program, may have unsupervised access to children . . . receiving services from a program licensed to provide foster care for children in the provider’s own home.”[16] 

4.               Minn. Stat. § 245A.07, subd. 3, allows the Commissioner to suspend or revoke a license, or impose a fine if a foster care provider fails to comply with the applicable statutes.  Similarly, Minn. R. 9545.0020 makes failure, inability, or refusal to comply with the applicable rules cause for revocation of the license.

5.               Minn. Stat. § 245A.07, subd. 1, requires the Commissioner to consider “the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights” of those persons in a licensee’s program before applying sanctions under Minn. Stat. §245A.07. 

6.               Before revoking a license, Minn. Stat. § 245A.04, subd. 6, requires the Commissioner to consider the facts, conditions, and circumstances concerning the program’s operation and the well-being of persons served by the program.  Furthermore, a risk of harm analysis must be performed based upon the results of any statutorily required background studies.

7.               Minn. R. 9545.0090 addresses the necessary personal qualities of foster family applicants, and states as one factor the ability of the foster parent to work with the agency and other community resources.[17]

8.               Minn. R. 9545.0100 requires the foster parent and the agency to work in partnership and cooperate with one another, abiding by the terms of the Foster Parent Agreement.[18]  Failure to comply with this provision is cause for revocation of a license.[19]

9.               Under Minn. R. 9545.0070, “[t]he agency must be notified, in advance, of any changes that would affect the terms of the license, such as a change of address or additional persons in the home.”[20]

10.           The burden of proof first lies with the Commissioner, who may demonstrate reasonable cause for the action taken by submitting statements, reports, or affidavits to substantiate the allegations that the licensee failed to comply fully with applicable law or rule.  If the Commissioner demonstrates that reasonable cause existed, the burden shifts to the licensee to demonstrate by a preponderance of the evidence that she was in full compliance with those laws or rules allegedly violated, at the time that the commissioner alleges the violations occurred.[21]

11.           The fact that Licensee did not report Mr. Moe’s presence in her home is sufficient to demonstrate reasonable cause to believe that Licensee violated Minn. R. 9545.0070.  However, that rule was not the reason cited for the revocation.

12.           The failure to report Mr. Moe’s presence is not sufficient to demonstrate reasonable cause to believe that Licensee violated Minn. R 9545.0090 and 9545.0100, which require licensees and agencies to work cooperatively and which were the rules and reason cited for the revocation.

13.           Regardless of whether reasonable cause has been demonstrated, the preponderance of the evidence is that Licensee did not fail to cooperate with the licensing agencies, but, rather, reasonably attempted to comply with all directives of the county agencies and with all the rules of which she was aware.

14.           The attached Memorandum is incorporated by reference.

 

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

 

RECOMMENDATION

 

          IT IS HEREBY RESPECTFULLY RECOMMENDED that the Commissioner impose no sanction upon Licensee’s license.

 

          Dated:  February 4, 2004

 

 

 

                                                            s/Steve M. Mihalchick

                                                            STEVE M. MIHALCHICK

                                                            Administrative Law Judge

 

Reported:  Tape recorded (1 tape).  No transcript prepared.

 

 

MEMORANDUM

 

          The Order of Revocation alleges that Licensee failed to cooperate and lacks the ability to work with BCFS due to her failure to notify BCFS that Mr. Moe’s moved into her home.  But the evidence demonstrates that Licensee did cooperate with the county agencies.

 

          Licensee’s testified credibly that she does not recall being advised by BCFS about the need to report changes in her household.  That testimony was credible for several reasons.  First, BCFS put forth no evidence at the hearing to controvert that testimony.  The Licensor and Licensing Supervisor were at the hearing, heard Licensee’s testimony, and did not dispute it.  There was no evidence that Licensee had any training in family foster care requirements and rules regarding background studies.  Perhaps BCFS did not provide such training to Licensee because the placement occurred quickly and involved Licensee’s own granddaughter.  Second, it would not be unusual for Licensee to not be aware of the rules.  She is not a typical foster care or child care provider with significant training and experience in regulation.  She was a grandmother providing a home for her granddaughter.  Third, once Licensee learned of her obligation to report the change in household, she immediately cooperated, and told Mr. Moe to either fill out the forms or move out of the house.  Licensee never had a chance to see the form Mr. Moe sent in and Ms. Kamm never followed up with Licensee, or Mr. Moe, to say the forms were inadequate and to obtain more complete information.  That is not a lack of cooperation by Licensee.   Finally, there is no reliable evidence that Licensee failed to cooperate with anything Ms. Steinbach asked her to do--we have only reports of Ms. Steinbach not being able to get good addresses from Mr. Moe.  We don’t know the circumstances behind that except for Licensee’s testimony that Ms. Steinbach never asked for anything further from her.  The only evidence is that, in fact, neither BCFS nor LLMCHS contacted Licensee for months before the Department revoked Licensee’s license.

 

          Even if a violation is made out under these facts, revocation is too severe a penalty under the criteria set out in Minn. Stat. §§ 245A.04, subd. 6, and 245A.07, subd. 1.  Mr. Moe passed away in early-August, 2003.  Any risk of harm from Mr. Moe has been eliminated.  Licensee’s violation was, at worst, a mistake and an oversight, not intentional in nature.  Licensee acted appropriately once she became aware of her mistake.  Such behavior does not indicate that Licensee provides unsafe or inappropriate care justifying revocation.  Some lesser sanction such as a suspension would be justified if discipline is determined to be appropriate.

         

BCFS recommended the revocation in part because Licensee no longer needs the foster care license.  LLMCHS removed the granddaughter from Licensee’s home and does not foresee placing her in the home again.  This is also not a justification for revocation.  It would justify terminating the license because it is not needed, if that is possible, or not renewing the license when it comes up for renewal, or allowing Licensee to withdraw her license.

 

                                                                      S.M.M.