15-1800-15669-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF HUMAN SERVICES

 

 

In the Matter of the Family Child Care License of Dee Messinger

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

 

          This matter came on for hearing before Administrative Law Judge Beverly Jones Heydinger at 10:00 a.m. on February 4, 2004, at Olmsted County Government Center, 151 4^th Street S.E., Rochester, MN.  Geoffrey A. Hjerleid, Assistant County Attorney, Olmsted County Government Center, 151 4^th Street S.E., Rochester, MN 55904-3710, appeared on behalf of the Department of Human Services.  Dee Messinger, 427 2^nd Avenue N.E., Stewartville, MN 55976, 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.  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 Dee Messinger’s family child care license properly revoked because of the disqualification of a person living in her home?

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

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

          FINDINGS OF FACT

1.               Ms. Messinger is licensed by Olmsted County on behalf of the Department of Human Services (Department) to provide child care in her home at 427 2^nd Avenue N.E., Stewartville, MN.  Julie Wobbrock has been employed by Olmsted County Community Services since September 1993.  She is responsible for licensing persons providing family child care, monitoring the license holders, investigating complaints, and recommending negative licensing actions when rules governing family child care are violated.  Ms. Messinger has been licensed by Ms. Wobbrock since 1993.  Ms. Messinger has had no prior violations of the licensing rules.[1]

2.               In December 2002, Ms. Messinger’s husband, William Messinger, was charged with criminal sexual conduct and indecent exposure.[2]  Ms. Messinger did not notify Olmstead County Community Services of the charges.[3]

3.               As part of the annual licensing renewal process, Ms. Wobbrock asked Ms. Messinger to complete required paperwork necessary in advance of Ms. Wobbrock’s licensing visit.  Among the forms were requests for information to conduct criminal background checks for Ms. Messinger and other family members age 13 and over living in the household where child care is provided.[4]  On June 5, 2003, Ms. Messinger, her husband and her daughter signed the consent form allowing Olmsted County to search for criminal convictions.[5]

4.               The background check revealed that William Messinger, Ms. Messinger’s husband, had pled guilty to one count of fifth degree criminal sexual conduct[6] and indecent exposure[7] on June 2, 2003.[8]  By separate letters dated August 13, 2003, Ms. Wobbrock notified Mr. and Ms. Messinger of Mr. Messinger’s disqualification and informed them of the right to request reconsideration of the disqualification.[9]  On September 9, 2003, Mr. Messinger requested reconsideration.[10]

5.               On September 22, 2003, Ms. Wobbrock sent a letter to the Department of Human Services recommending that Mr. Messinger’s request for reconsideration be denied, and that Ms. Messinger’s license be revoked because of Mr. Messinger’s disqualification.[11]  On December 2, 2003, the Department denied Mr. Messinger’s request for reconsideration.[12]  It issued an Order of Revocation on the same day.  The license was revoked because of Mr. Messinger’s disqualification. [13]  On December 10, 2003, Ms. Messinger appealed the license revocation.[14]

6.               The part of the home where Ms. Messinger provides child care is physically separate from the rest of the house.  Mr. Messinger is not at home during the hours that child care is provided, and is not in contact with the children who are in child care.  Also, his criminal offense involved adult co-workers.  For these reasons, Ms. Messinger contends that her husband is not a threat to the children in her care, and that her license should not be revoked because of his disqualification.[15] 

7.               Mr. Messinger has been in jail since September 2003.  He is on work release for up to 72 hours per week and is allowed to travel to Stewartville to conduct his business.[16]  The business is not located at the Messingers’ home.  Mr. Messinger is scheduled to be released from jail in May 2004.  Mr. Messinger has refused to participate in sex offender treatment.[17]

8.               Ms. Messinger has requested a variance from the disqualification, to allow her to continue to operate the child care so long as her husband is not on the premises.  At the time of the hearing, no action had been taken on the variance request.[18]

9.               Ms. Messinger has met with the parents of children in her care, informed them of her husband’s convictions, and discussed the safety of their children.[19]  Ms. Messinger is concerned that if her license is revoked, the families will need a reasonable period of time to find alternative child care.

           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 the appeal of the revocation of a family child care license, pursuant to Minn. Stat. §§ 245A.07, subds. 1 and 3(a), 254C.28, and 14.50. 

2.               Ms. Messinger 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 Department has demonstrated that reasonable cause existed to find that the license holder failed to fully comply with applicable law or rule.  Thus, the license holder has the burden of demonstrating by a preponderance of the evidence that she is in full compliance with those laws and rules.[20]  The license holder has failed to show that she is in full compliance with the applicable laws and rules.

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.[21]

5.               The Commissioner of Human Services has the authority to disqualify an individual if less than ten 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. §§ 609.3451, subd. 1 (criminal sexual conduct in the fifth degree).[22]  The Commissioner has the authority to disqualify an individual if less than seven years have passed since the discharge of the sentence interposed for conviction of Minn. Stat. § 617.23, subd. 1 (3) (indecent exposure).[23]  As required by Minn. Stat. § § 245A.04, subd. 6 and 245C.16, the Commissioner considered the information provided by Mr. Messinger, 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 reviewed Mr. Messinger’s request for reconsideration as required by Minn. Stat. § 245C.22.[24]

7.               The Commissioner may revoke a child care license when the applicant or anyone living in the home for which the license has been issued has been disqualified because he or she was convicted of a crime set forth in Minn. Stat. § 245C.15.[25]  Mr. Messinger ordinarily resides with his wife in their home and has pled guilty to two disqualifying offenses.

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 revoke Dee Messinger’s family child care license be AFFIRMED.

 

Dated this 4th day of March, 2004.

                                                                

/s/ Beverly Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

Tape recorded (two tapes)

 

MEMORANDUM

          The Department acted within its authority when it revoked Ms. Messinger’s family child care license.  Its duly adopted 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. Messinger committed the disqualifying offenses.  However, Ms. Messinger challenged the determination that her husband presents any threat to children being cared for in his home.  Accordingly, she 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 grant the request for reconsideration.  The Administrative Law Judge lacks the authority to review the Commissioner’s decision not to set aside the disqualification.[27]  The decision was based on the factors set forth in statute and rule.

At the hearing, the county attorney suggested that Ms. Messinger had a duty to notify the county that her husband had pled guilty to the criminal charges, citing Minn. Stat. § 245A.07, subd. 3.  However, that was not stated as a basis for revocation in the Order for Revocation.  In light of the conclusion that the revocation may be affirmed because of the disqualification, and the possible lack of notice for this alternative basis for licensing action, the failure to notify the county will not be addressed.

          So long as the disqualifying individual remains in the home, the child care license may be revoked.  Accordingly, the Department’s decision is affirmed.

           

                                                            BJH