HS-87-127-BC
2-1800-1613-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES
In the Matter of the Family Day FINDINGS OF PACT,
Care License Appeal of Mary McGraw. CONCLUSIONS AND
RECOMMENDATION
The above-entitled matter came on for hearing before Bruce D. Campbell,
Administrative Law Judge from the Minnesota Office of Administrative Hearings,
on July 9, 1987, at 10:00 a.m. at the Blue Earth County Human Services
Department, 410 South Fifth Street, Mankato, Minnesota 56001
Appearances: John W. Fristik, Assistant County Attorney, 410 South Fifth
Street, Box 8608, Mankato, Minnesota 56001, appeared on behalf of the Blue
Earth County Department of Human Services (Local Agency) and the Minnesota
Department of Human Services (Department); Mary McGraw, 20 Mayfair Circle,
Mankato, Minnesota 56001, appeared on her own behalf.
The record closed on July 9, 1987, at the conclusion of the hearing.
Notice is hereby given that, pursuant to Minn. Stat. 14.61 the final
decision of the Commissioner of Human Services shall not be made until this
Report has been made available to the parties to the proceeding for at least
ten days, and an opportunity has been afforded to each party adversely
affected to file exceptions and present argument to the Commissioner of Human
Services. Exceptions to this Report, if any, shall be filed with the
Commissioner of Human Services, 4th Floor, Centennial Office Building, 658
Cedar Street, St. Paul, Minnesota 55155.
STATEMENT OF ISSUES
The hearing was held to determine whether the conduct on the part of the
husband of the Licensee violated Minnesota Rules Part 9502.0335, subp. 6, and,
if so, whether the Licensee's family day care license should be made
probationary, suspended or revoked.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Mrs. Mary McGraw is a married woman who has been licensed since 1979
to provide day care services in Mankato, Minnesota, under a Class A day care
license.
2. Mrs. McGraw has always provided satisfactory day care and her license
has not been the subject of any prior disciplinary hearing or complaint.
3. On March 23, 1987, at approximately 6:30 p.m. Mr. McGraw was
responsible for the supervision of two of his younger children. He had left
the home earlier and told the two boys to do the dishes. Instead of doing so,
they watched television until they heard his car return. They ran to the
kitchen and began to do the dishes. Mr. McGraw came in and confronted his
eight-year-old son Kevin with his failure to follow the father's
instructions. Mr. McGraw grabbed Kevin by his neck at a point on his neck
above the Adam's apple, Kevin's windpipe or Adam's apple were not damaged.
Mr McGraw did not otherwise strike Kevin on that occasion.
4. The force of the contact raised marks on the front of Kevin's neck in
the form of bruises where blood was drawn to the surface. Apparently, Kevin
did not discuss the incident with his mother.
5. On March 25, 1987, the principal of Kennedy School, Mr. Ohman, called
Blue Earth County Child Protection Services to report the marks on Kevin's
neck. The marks were still visible on March 25, 1987. A child protection
worker came to the school and interviewed Kevin. The child protection worker
was accompanied by a member of the Sheriff's Department, William Purvis.
Kevin explained the incident to the child protection worker and the deputy
sheriff.
6. Mr. McGraw was subsequently interviewed by Mr. Purvis and Mr. McGraw
admitted that the incident occurred.
7. When Kevin came home from school subsequent to his interview by the
Id protection worker and Mr. Purvis, he told his mother what had occurred
and indicated that she was to provide a written explanation to the school.
When Mrs. McGraw discovered the incident, she discussed the matter with her
husband and he, again, admitted the incident and told her that it might be
tatter if she provided all of the discipline for the children. She declined
that suggestion.
8. On March 27, 1987, Mrs. McGraw was interviewed at her home regarding
the incidence of alleged physical abuse. She indicated that she was aware of
the incident between Kevin and his father, She also informed the
investigating worker that such discipline was done by her husband without her
Knowledge and did not represent the way she would discipline her own children
or any day care children entrusted to her care.
9. On April 16, 1987, the day care licensing social worker for Blue
Earth County received a substantiated report of physical abuse from the child
protection worker who had investigated the initial occurrence- The licensing
worker discussed the existence of the substantiated report of physical abuse
with her supervisor, the Department of Human Services, and the Office of the
County Attorney. A decision was made to revoke the day care license based on
Minnesota Rule 9502.0445, Substantial Evidence of an Incidence of Physical
Abuse of a Child.
10. On April 17, 1987, the licensing social worker visited Mrs. McGraw in
her home to explain the revocation action, the appeal procedure and the method
of continuing to provide day care service while an appeal was being
processed. Mrs. McGraw indicated that her husband would not pose a threat to
any of the family or to day care children. She asked what effect a divorce
would have on her license but did not pursue the matter.
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11. At some time in the past, the McGraws were experiencing marital
difficulties and Mr. McGraw had a history of physically abusing his wife.
Mr. McGraw has received counseling to control the physical abuse of
Mrs. McGraw,
12. Mrs. McGraw described her husband as "having a temper" which was
affected by reverses in his current business enterprise, the sale of farm
machinery.
13. Mr. McGraw did not testify at the hearing or offer any explanation of
either his past history of abuse of his wife or the incident involving
physical abuse of his son, Kevin.
14. On May 12, 1987, a Notice and Order for Hearing was issued, setting
July 9, 1987, as the date for the hearing. Attached to that Notice and Order
for Hearing as Exhibit A was a letter from the day care licenser for Blue
Earth County Human Services to Mrs. McGraw, dated April 21, 1987, detailing
the County's recommendation to revoke the day care license and citinq the
appropriate DPW rule.
PERTINENT REGULATORY PROVISIONS
Minn. Stat. 245.801, subd. 3 (1986), provides:
The commissioner may suspend, revoke or make
probationary a license if an operator falls to comply
with applicable laws or the rules of the commissioner
Minn. Stat. 245.8Gl, subd. 4 (1986), in relevant part, provides;
... Upon demonstration by the agency that reasonable cause
exists to take the proposed action with respect to a family
foster care or family day care license, the burden of proof
shifts to the licensee to demonstrate compliance with the
rule by a preponderance of the evidence ....
Minnesota Rule Part 9502.0335, subp. 6, in relevant part, provides:
Disqualification factors. An applicant or provider shall
not be issued a license or the license shall be revoked,
not renewed, or suspended if the applicant, provider, or
any other person living in the day-care residence are
present during the hours the children are in care, or
working with the children:...
D. Has had a conviction of, has admitted to, or there is
substantial evidence indicating incest (as prohibited in
Minnesota Statutes, section 609.365), or physical abuse,
sexual abuse, or neglect (as those terms are defined in
Minnesota Statutes, section 626.556).
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Minnesota Statutes 626.556, subd. 2 (d), provides:
"Physical abuse" means any physical injury inflicted by a
person responsible for the child's care on a child other
than by accidental means, or any physical injury that
cannot reasonably be explained by the child's history of
injuri es.
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of the Minnesota
Department of Human Services have jurisdiction in this matter and authority to
take the action proposed pursuant to Minn. Stat, 245.801 and 14.50 (1986),
2. Proper notice of the hearing herein was given and the Local Agency
and the Department have complied with all substantive and procedural
requirements of law or rule.
3. The Local Agency has the burden to demonstrate that reasonable cause
exists to take disciplinary action against the family day care license of the
Respondent, and, upon a showing that such reasonable cause exists, the burden
of proof shifts to the Licensee to demonstrate compliance with the rule by a
preponderance of the evidence,
4. The Local Agency has demonstrated that a person living in the
day-care residence engaged in an act of physical abuse with respect to one of
his children, as defined in Minnesota Statutes 626.556, subd. 2 (d) (1986).
5. The Licensee has not demonstrated that the physical safety of day
care children could not be adversely affected by the presence of her husband
in the day-care home.
6. As a consequence of Conclusions 4 and 5, supra, a violation of
Minnesota Rule 9502.0335, subp. 6 (1985), has been established.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
It is the recommendation of the Administrative Law Judge to the
Commissioner of Human Services that the family day care license of Mrs. Mary
McGraw be revoked and not subject to reinstatement as long as Mr. McGraw is a
member of the household.
Dated this 16th day of July, 1987.
BRUCE D. CAMPBELL
Administrative Law Judge
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NOTICE
Pursuant to 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 mai I.
Reported: Tape Recorded
MEMORANDUM
The facts in this case are not open to serious dispute. Mrs. Mary McGraw,
over a period of approximately ten years, has provided exceptional day care
services to children in Mankato. It is also undisputed that her husband has a
history of physical violence, at least as regards Mrs. McGraw. The incident
of physical abuse, as defined in Minnesota Statutes 626.556, subd. 2 (d)
(1986), involving Kevin McGraw has also been admitted by Mr. McGraw, Mrs.
McGraw and Kevin, It is not clear to the Administrative Law Judge what the
position of Mrs. McGraw is. While she expressed concern and dismay about the
incident of discipline involving Kevin, she supported testimony by Sergeant
Steven Boysen of the Mankato Police Department which seemed to minimize the
incident. The statute, however, defines physical abuse as a physical injury
intentionally inflicted, It cannot be denied that Kevin was grabbed by his
father hard enough to raise blood to the surface of his neck and to cause
significant bruises, visible for at least several days,
The word "injury" has a comprehensive meaning and has been held to include
any physical detriment, hurt, loss, or damage, 43A C.J.S., Injury, pp.
766-767. A physical injury means any "bodily injury" and includes bruises,
11 C.J.S., Bodily injury, pp. 376-377. While the word is broad enough to
include the infliction of pain, even if no cut, bruise or wound results, it is
not necessary to determine whether pain alone constitutes a physical injury
for purposes of the cited statutes. It is clear that the Licensee's son
sustained a physical injury when he was grabbed by his father because he
sustained a significant bruise. Under prior determinations of the
Commissioner, the presence of such bruising and the infliction of visible
marks qualifies as physical abuse, as statutorily defined. In the Matter of
the Day Care License of Cheryl Downs, 14671 Finale Avenue, Hugo, Minnesota
55038. Since the Licensee admitted that the injury resulted from her
husband's acts, the only issue that must be decided in this proceeding is the
nature of the action, if any, that the Commissioner should take against the
Licensee's day care license.
The Administrative Law Judge has very little basis for judging Mr.
McGraw's propensity towards violence and the danger he may pose to day care
children. It is admitted that he has a history of physical abuse of his wife,
that he "has a temper" and is experiencing pressure in his work, With the
physical abuse being substantiated, under Minn. Stat. 245.801, subd. 4
(1986), it is the duty of the Respondent to bear the burden of proof that a
sanction short of revocation will protect day care children, when revocation
would otherwise be appropriate. In most respects, the danger to day care
children posed by Mr. McGraw has not been explored on the record. Hence the
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lice nsee has not demonstrated by a preponderance of the evidence that some
action short of revocation, which would otherwise be appropriate, would
adequately protect day care children in Mrs. McGraw's charge.
Mrs. McGraw expressed concern at the hearing about how her license could
be affected when she has not done anything inappropriate. All of the evidence
demonstrates that Mrs. McGraw provides exceptional day care service. The
rule, however, is clear. Mr. McGraw's act of physical abuse of Kevin, his
son, and his dwelling in the day care home make action against Mrs. McGraw's
license appropriate, without any showing of actual or moral fault on her
part, Given the facts of the occurrence and Mr. McGraw's prior history, it
was incumbent on Mrs. McGraw to demonstrate that the safety of day care
children would not be adversely affected by the presence of her husband in the
home, if some sanction other than revocation were to be considered by the
Administrative Law Judge. She did not do so; nor did Mr. McGraw even testify
at the hearing. Under such circumstances, revocation of the day care license
is appropriate.
B .D C
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