OAH No. 12-1800-15967-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF HUMAN SERVICES

 

In the Matter of the Revocation of the License of Shannon Johnson to Provide Family Day Care.

FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION, AND MEMORANDUM

This matter came on for Hearing before Administrative Law Judge Steve M. Mihalchick on July 23, 2004, at the Clay County Family Service Center, 715 N. 11^th Street, Moorhead, Minnesota 56561.  The record closed upon adjournment of the hearing that day.

Michelle Winkis, Assistant Clay County Attorney, 807 North 11^th Street, PO Box 280, Moorhead, Minnesota 56561-0280, appeared for the Minnesota Department of Human Services (Department) and Clay County Social Services (DCSS).

Shannon Johnson, 1220 28^th Avenue South #302, Moorhead, Minnesota 56560, appeared for herself without counsel.

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 ISSUES

Does a maltreatment determination based on a domestic dispute between Ms. Johnson and her husband provide cause to terminate a variance?

The Administrative Law Judge concludes the Department did not establish cause to terminate the variance.

Did Ms. Johnson fail to comply with the terms of a conditional license requiring compliance with all licensing rules?

The Administrative Law Judge concludes that although Ms. Johnson did not comply with all terms of her conditional license and correction orders were issued, suspension rather than revocation is the appropriate sanction.

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

FINDINGS OF FACT

1.               Shannon Johnson (Licensee) is a resident of Clay County.  Until recently she lived with her husband, Shawn, and their two children, K.J. and B.J., at 509 1^st Avenue SE, Dilworth, MN 56529. She has provided licensed child care since 2001. 

2.               On February 21, 1999, Ms. Johnson was involved a physical altercation with her husband concerning his daughter (a teenager) that resulted in Johnson pleading guilty to disorderly conduct.  Clay County Social Services determined that there was preponderance of the evidence that Johnson had committed a fifth-degree assault in violation of Minn. Stat. § 609.224, which disqualified her from receiving a day care license.[1]  The County recommended that the disqualification not be set aside, but that a variance be granted for one year. [2]

3.               On November 2, 2001, the Department of Human Services declined to set aside the disqualification but granted a one-year variance with the following stipulations:  no other disqualifying factors, and no recurrences of the same or similar incidents.[3]

4.                On September 10, 2002, Clay County requested that Johnson’s license be extended.

5.               Johnson received two correction orders that month:  one, dated September 10, 2002, involved a variety of record-keeping violations, accessible cleaning supplies, lack of a gate by an open stairway, and failure to supervise Johnson’s own toddler-age son, B.J..  The licensing worker had come to Johnson’s door unannounced, and B.J. had answered the door.  Johnson’s adult sister, who was watching B.J., was also watching television in another room and did not hear the worker at the door; Johnson was taking a shower.  All of the daycare children were napping.[4]  On September 25, 2002, the licensing worker wrote another correction order for lack of supervision when she arrived at Johnson’s house and found her standing on the deck, talking on the phone and smoking.  Johnson maintained that she could see and hear the daycare children through a window in her kitchen; the licensing worker contended that she could not see the children because of window blinds and glare from the sun and that she could not hear the children either.[5]

6.               Johnson made the required corrections and requested reconsideration of the portions of the two correction orders concerning lack of supervision.[6]  The Department denied reconsideration and affirmed the citations in December 2002 and February 2003, respectively.[7]

7.               On March 31, 2003, the Department again declined to set aside the disqualification based on the February 21, 1999 incident but granted a one-year variance with the same stipulations as applied to the original variance.[8]

8.               On April 11, 2003, the Department placed Johnson’s license on conditional status because of the two correction orders from September 2002 concerning lack of supervision.  The terms of the conditional license included six hours of additional training, submission of a detailed supervision plan to be approved by Clay County Social Services, compliance with Minn. R. 9502.0300-.0445, and documentation that a copy of the order of conditional license was provided to parents of children in care.[9]

9.               At some point during 2003, Johnson’s husband left her and her children when he began having a relationship with a woman who formerly was Johnson’s best friend and a daycare parent. Johnson began having significant financial difficulties.[10]  

10.           During 2003 the County licensing worker issued a series of correction orders to Johnson:  in February, for lack of supervision (smoking on the deck with the door to the kitchen closed);[11] in March, for a missing handrail, being over capacity by one toddler, and failing to pick up dog excrement in the side yard;[12] and in October, for miscellaneous matters including the need for a furnace inspection, diapers in a garbage can without a cover, water temperature set too high on the water heater, spare batteries needed for the radio, and hanging electrical fixtures in the basement (the sheetrock in the ceiling was removed due to water damage and had not been repaired).[13]  Johnson corrected all the citations quickly.[14]

11.           On October 15, 2003, the Department renewed the one-year variance with the same stipulations as applied to the original variance.[15]

12.           On January 29, 2004, the Clay County licensing worker issued a correction order for permitting an infant to sleep in a car seat and for some missing paperwork.  The infant’s mother wanted the child to sleep in the car seat but had not brought Johnson a note from her physician.[16]  Johnson corrected these citations the same day.[17]

13.            On January 31, 2004, the police were called to Johnson’s home at 7:10 in the evening.  Shawn Johnson had come to the home to pick up some of his belongings.  The couple began arguing about whether their youngest son, B.J., was going to leave with him.  The argument escalated to pushing and hitting by both parties, with contradictory evidence about who hit whom first.  The couple’s two children witnessed the fight.  Police advised Shawn Johnson to leave the premises, and no one was charged criminally in connection with the incident.[18]

14.           Licensing and child protection workers interviewed the couple and their oldest son, K.J., on February 23, 2004.  During the interviews Shannon Johnson said, among other things, that she would use Rainbow Bridge as a neutral place to exchange the children, but that Shawn Johnson had refused to do so and wanted his 19-year-old daughter to be the neutral party.  Based on these interviews, the workers concluded abuse/neglect occurred and that protective services were necessary.[19]

15.           The County licensing worker issued correction orders to Johnson in February and March, 2004.  In February, the citation involved dog excrement in the yard; in March, the order involved missing paperwork on one child and the need to remove a double-cylinder deadbolt.[20]  Johnson corrected these citations immediately.[21]

16.           On March 25, 2004, the County licensing worker recommended to the Department that the variance be rescinded and that Johnson’s license be revoked based on the maltreatment/neglect determination.[22]

17.           On March 28, 2004, Shawn Johnson returned to Johnson’s home at about 2:10 a.m. to retrieve his dogs.  Shannon Johnson heard him and went outside.  They began to argue, and Shannon Johnson entered Shawn’s vehicle to remove her car keys from his key chain.  Shawn’s nephew and his daughter’s boyfriend, who were present with him, removed her from the car.  As they pulled her out, she struggled with them and someone got kicked or elbowed.  An intoxicated guest at a nearby motel called the police after inserting himself into the conflict.[23]  The children were not witnesses to this incident, and no one was charged with any crime.

18.           On March 29, 2004, Clay County child protection notified Shannon Johnson that it had determined that abuse/neglect had occurred on January 31, 2004.  The reasons stated were as follows:

[Y]ou and Shawn were involved in a physical altercation.  During this time, [B.J.] was standing next to his father and [K.J.] had come around the corner.  Shawn was holding [B.J.] when you grabbed him out of Shawn’s arms.  During the altercation, you took the phone away from [K.J.] when he was attempting to call law enforcement.  Shawn plugged the phone in and you unplugged it again.  [K.J.] saw you hit Shawn and pushing each other around.  The children could have been injured during this.  Protective services are necessary as law enforcement was contacted 5 years ago for a domestic altercation between you and Shawn.  At this time, there is significant conflict in your relationship with Shawn.  You have not accessed Rainbow Bridge to provide a safe exchange and the risk to the children when you and Shawn are together remains.[24]

19.     Johnson did not seek reconsideration of the maltreatment/neglect determination.[25]

20.     On April 16, 2004, the Department terminated the variance and issued an Order of Revocation.[26]

21.     Johnson made a timely request for an appeal of the Order of Revocation.[27]

22.     On April 23, the licensing worker issued a correction order to Johnson for using a substitute caregiver without having a background check done.[28]  The citation was corrected immediately.[29]

23.     On April 26, 2004, Shawn Johnson returned to the home at about 4:30 p.m.  It was K.G.’s ninth birthday, and there was a party going on in the back yard.  Shawn Johnson became angry and started screaming at a friend of K.G.’s, who was riding K.G.’s four-wheeler in the driveway.  Shannon Johnson came out of the house when she heard him and asked him for money to pay the electric bill, because the electrical service had been shut off to the residence for failure to pay the bill.  Shawn Johnson refused to give her any money, grabbed her by the neck, and hit her in the face in front of several witnesses.  He was charged with fifth-degree assault in connection with this incident.[30]

24.     The Johnsons declared bankruptcy, and their home has been sold.  Shannon Johnson now lives in an apartment with a security system, and she and her husband exchange messages and children through a third party.[31]  She is seeing a psychiatrist and taking medications for depression.  She and her children have a family therapist provided through child protection services.  She intends to obtain a divorce.

25.     Shannon Johnson stopped providing daycare in the end of June 2004.  She anticipates that it will take at least one year for her to repair her credit, buy a new home, and be ready to return to daycare.[32]

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 fulfilled all relevant substantive and procedural requirements of law or rule.

3.       An applicant shall not be issued a license to provide child care if the applicant has a disqualification under Minn. Stat. § 245C.14, unless the Department has set aside the disqualification or issued a variance.[33]

4.       The Licensee was disqualified based on the County’s determination that a preponderance of the evidence indicated she had committed a fifth-degree assault in violation of Minn. Stat. § 609.224.[34]  The Department declined to set aside the disqualification but granted a variance, with the stipulation that she have no other disqualifying factors or recurrences of the same or similar incidents.  The Department issued a license subject to the variance.

5.       The Department may terminate a variance at any time for cause.[35]

6.       Substantiated maltreatment of a minor that is serious or recurring is a disqualifying factor if less than seven years have passed since the time of disposition.[36]  “Serious maltreatment” means sexual abuse, maltreatment resulting in death, maltreatment resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury.[37]  “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that the maltreatment occurred and that the subject was responsible for the maltreatment.[38] 

7.       The maltreatment determination against the Licensee based on the January 31, 2004, incident is not a disqualifying factor because it does not involve serious or recurring maltreatment, within the meaning of Minn. Stat. § 245C.15, subd. 4. 

8.       The record does not establish that the circumstances of the January 31, 2004 incident are the same as or similar to the disqualifying incident on February 21, 1999.

9.       Because the Department has failed to show that the Licensee has any additional disqualifications or incidents similar to the disqualifying incident, the Department failed to establish cause to terminate the Licensee’s variance.

10.     Failure to comply with licensing rules or the terms of licensure may provide grounds for a negative licensing action.[39]  When applying sanctions authorized under chapter 245A, the commissioner shall 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 persons served by the program.[40]

11.     At a hearing regarding a licensing sanction, the Department 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.  If the commissioner demonstrates that reasonable cause existed, the burden of proof shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules at the time the alleged violations occurred.[41]

12.     The Department established reasonable cause to substantiate that the Licensee failed to comply with a number of licensing rules in violation of the conditional license, and the Licensee has not contended that she was in full compliance; however, the Department renewed the license and again granted a variance to the Licensee on October 15, 2003, despite the County’s prior issuance of correction orders in September 2002 and February, March, and October 2003. 

12.     The correction orders issued in January through April 2004 concerned record-keeping infractions and one incident of dog excrement in the yard.  These violations were immediately corrected.  These rule violations were not serious or chronic, and they had no effect on the health, safety, or rights of persons served by the program.

13.     These rule violations, together with the Licensee’s move to new premises,  support an indefinite suspension, as opposed to revocation, of the license to provide child care. 

14.     The attached Memorandum is incorporated by reference.

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

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Commissioner continue the variance but order an indefinite suspension of Johnson’s child care license until Johnson can establish that her residence complies with all requirements of law and rule.

 

Dated:  August 12, 2004

 

 

                                                            s/Steve M. Mihalchick

                                                            STEVE M. MIHALCHICK

                                                            Administrative Law Judge

 

         

Reported:  Tape recorded (2 tapes).  No transcript prepared.

 

 

MEMORANDUM

The variance was granted subject to two stipulations:  no further disqualifications, and no recurrences of the same or similar incidents.  The incident for which the Licensee was disqualified involved a fifth-degree domestic assault for which the Licensee was criminally charged.  There have been no additional disqualifications or incidents similar to this.  In essence, the Department contends that the license should be revoked because the Licensee and her husband have a hostile relationship and because Johnson failed to protect herself and her children from her husband’s abusive conduct;[42] that is a matter very different from committing domestic assault, and one that does not violate either the terms of licensure or any licensing rule.   None of these incidents occurred during daycare hours or endangered the health or safety of daycare children.  Accordingly, the Administrative Law Judge has concluded that the Department failed to demonstrate cause to terminate the variance.

The correction orders issued during 2004 demonstrate that the Licensee was having difficulty with managing her daycare business given the turmoil in her marriage.  The hearing record also establishes that the Licensee has stopped providing daycare and has no plans to provide daycare for at least one year, because she has moved from her home into an apartment.  Under these circumstances an indefinite suspension of the license is a more appropriate sanction than revocation. 

                                                                                S.M.M.