OAH Docket No.  3-1800-16483-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Maltreatment Determination Against and Disqualification of Patrick Harrington, and the Revocation of the License of Patrick and Pennie Harrington to Provide Adult Foster Care.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION

The above-entitled matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy on June 22 and 23, 2005, at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, in Minneapolis, Minnesota.  The record closed on July 26, 2005 after receipt of written argument from the parties. 

Kerri Stahlecker Herman, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, appeared on behalf of the Department of Human Services (the Department).

Philip G. Villaume, Esq., Edina Executive Plaza, 5200 Wilson Road, Suite 150, Edina, Minnesota 55424, appeared on behalf of Patrick and Pennie Harrington. 

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 and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation.  Under Minn. Stat. § 14.61, the Commissioner shall not make a final decision until this Report has been made available to the parties for at least ten days.  The parties may file exceptions to this Report and the Commissioner must consider the exceptions in making a final decision.  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. 

 

 

STATEMENT OF ISSUES

 

1.               Is Patrick Harrington responsible for maltreatment because he had a sexual relationship with a vulnerable adult in his care?

2.               Should Patrick Harrington be disqualified from providing foster care to adults based on the maltreatment determination?

3.               Should the Harringtons’ license to provide adult foster care be revoked?

The Administrative Law Judge concludes that the Department did not establish by a preponderance of the evidence that Patrick Harrington maltreated a vulnerable adult, and therefore he should not be disqualified and the foster care license should not be revoked. 

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

FINDINGS OF FACT

 

1.      A.M. is a 46-year-old woman who is a vulnerable adult because she has borderline intellectual functioning as the result of an anoxic injury at birth, a history of Bell’s Palsy, and a seizure disorder.[1] A.M. receives adult foster care services from Hennepin County Human Services (County) because she needs training and supervision in independent living skills.[2]  A.M. has been in and out of shelters, group homes, and other structured living situations for more than 20 years.[3]

2.      Patrick and Pennie Harrington have been licensed adult foster care providers for eight years.[4]  The Harringtons live in Hanover, Minnesota.  They also own a one-room cabin near Barnes, Wisconsin.

3.    Before July 2002, the Harringtons lived with their adopted adult son Mike, who is a former client, and two adult men in foster care (J.H. and K.K.).   

4.      In July 2002, A.M. was homeless and needed an immediate foster care placement.  At that time A.M. was married to another vulnerable adult, but they were in the process of divorcing and were not able to live on their own.  A.M.’s county social worker told the Harringtons that A.M. had a history of lying.[5]  The social worker noted on the county’s “Adult Placement Request” form that: “(A.M.) tends to leave the situation when not to her liking.  Has some history of stealing tapes, radio etc.  Lies at times if sees it to her benefit.”  She also reported that in a previous placement A.M. had gotten into trouble for having sexual relations with other residents.[6]  This information was shared with the Harringtons before A.M. was placed in their home.[7]

5.    The Harrington home is a split level with bedrooms for A.M., J.H., K.K. and Mike on the lower level.  A.M.’s bedroom was the first room at the bottom of the stairs.   Patrick and Pennie Harrington have separate bedrooms on the upper level.[8]    Pennie Harrington is chronically ill.[9]  She cannot go up and down stairs and does not sleep well.[10]  She frequently gets up and walks around the main floor of the house at night.[11]  The rules at the foster home required the residents to be downstairs after 9:00 p.m. unless there was an emergency.[12]  House rules also required that if anyone was in a resident’s room with the resident, the door had to be open.[13]

6.    After she began living with the Harringtons, A.M. told Ms. Harrington that she had a child named Christopher, Jr., who was living in Mankato.  She indicated that Christopher would be coming for a visit.[14]  A.M. has made similar statements to others, including her former mother-in-law.  At one time A.M. told the mother-in-law that she had a child named Christopher, Jr., who lived at St. Joseph’s Children’s Home.[15] On one occasion A.M. asked the mother-in-law to come clean her apartment, because a social worker was coming to inspect the home to determine whether Christopher, Jr., could come for visitation there.[16]  After the mother-in-law cleaned the apartment, A.M. told her that the visit had fallen through.  Most notably, on another occasion A.M. called the mother-in-law and told her that Christopher, Jr., had been killed in a car accident.  A.M. had also informed her social worker that she had a child named Christopher, Jr.[17]  These statements are not true.  A.M.’s family has no knowledge that she has ever had a child, and there is no record in A.M.’s extensive social services history to suggest that she has ever had a child.[18] 

7.      In November 2002, Dr. James Baldus, a psychologist, began seeing A.M. for problems associated with A.M.’s pending divorce, issues regarding her behavior and difficulty adjusting to the Harringtons’ foster home, and issues regarding life skills and getting a job.[19]  Over a six-month period from November 2002 until June 2003 Dr. Baldus saw A.M. about 8 times.[20]

8.      On December 6, 2002, Dr. Baldus completed a psychological evaluation of A.M.   He concluded that although A.M. was very social and engaging it appeared that she “has difficulty trusting others and may be suspicious of their motives.  It is likely that she adopts a rather deceitful approach to getting what she wants and may be prone to angry outbursts and irritability.  She may have underlying feelings of anger and resentment, as she feels misunderstood and mistreated.  She appears to have a low sense of responsibility to other people.”  He diagnosed her as having an adjustment disorder and depressed mood. [21]

9.      During the course of therapy A.M. lied to Dr. Baldus about how she was doing at the foster home.  A.M. reported that she was doing her assigned chores when in fact she was not.  There were other conflicts in the home concerning A.M.’s refusal to follow through with finding employment. [22]  

10.    During her therapy session on February 12, 2003, A.M. told Dr. Baldus that she had been having a sexual relationship with Patrick Harrington.[23]   

11.       On February 12, 2003, A.M.’s caseworker removed her from the Harrington home.[24]

12.       On February 19, 2003, an investigator with the Hennepin County Sheriff’s Office, along with an investigator from the Department’s Licensing Division, interviewed A.M. at her new foster home.[25]  A.M. told the investigators that her sexual relationship with Patrick Harrington began in August 2002 at the Harringtons’ cabin in Wisconsin.   A.M. said that on a previous visit, she and Pennie Harrington had slept in a motor home parked outside the cabin, while Patrick Harrington and the other men had slept in the cabin.  On this particular trip, Pennie Harrington did not accompany the others to the cabin.  While riding on a four-wheeler with Patrick Harrington, A.M. said Patrick Harrington told her that he would like to have a relationship with her that involved both companionship and sex, and A.M. agreed to it because she has a hard time saying no.  That night, Harrington slept in the motor home with her, while J.H. and K.K. slept in the cabin.  A.M. and Patrick Harrington started out in separate beds, with Harrington on the large bed in back, and A.M. on the pull-out couch in the front of the motor home.  During the middle of the night, A.M. said Patrick Harrington woke her up and asked to switch beds with her because he was uncomfortable, which she did.  Later in the night, she said he returned to the large bed, and they had sex.  A.M. said that the following weekend on another trip to the cabin she and Patrick Harrington went riding on a four-wheeler by themselves and had sex in the woods, on top of a pink blanket from the motor home.[26]

13.    A.M. said that after their sexual encounters in Wisconsin, Harrington would come to her bedroom at the house in Hanover after everyone had gone to bed, around 12:30 a.m., and they would have sex “maybe once a week.”[27]  A.M. told the investigators that in all of their sexual encounters Patrick Harrington was unable to sustain an erection or ejaculate because he had a “strained heart.”[28]  She was unsure what type of undergarments he typically wore (boxers or briefs).  A.M. said she had told only J.H. and Dr. Baldus about her sexual relationship with Patrick Harrington.  A.M. said that she liked the Harringtons, they were nice to her, and she felt guilty about deceiving Pennie Harrington.[29]

14.    On February 20, 2003, the Hennepin County detective interviewed J.H., who had sustained a traumatic brain injury in 1997.[30]  J.H. told the detective that A.M. told him that she and Patrick Harrington were sleeping together and that they had been together about five times.[31]   J.H. said that on one occasion, around 5:00 p.m., he heard Patrick Harrington talking in A.M.’s bedroom with the door closed.  J.H. said he did not remember Harrington and A.M. ever taking off alone on a four-wheeler while at the cabin. [32]

15.    When the detective interviewed Patrick Harrington on February 22, 2003, Harrington admitted that he had slept in the motor home with A.M. on a trip to the cabin.  He first said he did not remember asking A.M. to switch beds in the middle of the night, but then said it was a good possibility that that had happened. He denied that he had ever had sex with A.M.[33]  Later, when investigators executed a search warrant at the Harringtons’ home and seized a pink blanket from a cupboard in the motor home, Harrington told them something to the effect of  “You won’t find anything on that blanket, it’s been washed.”[34] 

16.    Patrick Harrington was charged in Hennepin County District Court with criminal abuse of a vulnerable adult.[35]  The charge encompassed only sexual activity that allegedly occurred in Hennepin County at the Harringtons’ home in Hanover; the incidents that allegedly occurred at the Wisconsin cabin were admitted solely as Spreigl evidence.  During the criminal trial, A.M. testified under oath that she had a child named Christopher, Jr., who was then 7 years old.  She further testified that she believed Christopher, Jr., had been killed in a car accident, because the child’s father had told her that, and she learned later that the father had lied to her.[36]  On October 10, 2003, a jury found Harrington not guilty of sexual conduct with A.M.[37]

17.    During the contested case hearing, A.M. testified that she had lied under oath in the criminal trial about having a son named Christopher, Jr.  She said there is a child with that name who is the son of a friend.  A.M. testified that she did not have a biological child, but that she wished Christopher, Jr., was her son because she was once pregnant by the child’s father but lost the baby through miscarriage.[38]  She told her sister, however, that the father had forced her to have an abortion.[39]

18.    A.M. has been untruthful with her current foster care provider on a number of occasions.  She has created fantasy friends, faked illness in order to avoid appointments she does not want to keep, and told the provider that she has a son named Christopher, Jr.  She has also lied about financial matters.[40]

 

Procedural Findings

19.    On July 12, 2004, the Department made a determination of substantiated maltreatment against Patrick Harrington.  The Department investigator concluded that Harrington had had sexual contact with A.M. on two occasions at the Harrington’s cabin in Wisconsin and that he had continued to have sexual contact with A.M. in her bedroom until two weeks prior to A.M.’s removal from the Harringtons’ home in February 2003.[41]  The maltreatment determination was based on the investigator’s view that A.M. was consistent with details over a period of time; there was no information that A.M. had ever made false allegations of sex abuse in the past; the details provided by A.M. were too sophisticated to have been fabricated given the functioning level of A.M.; and J.H. corroborated A.M.’s allegations in part when he stated that Patrick Harrington was in A.M.’s bedroom with the door closed.[42]  

20.    On July 12, 2004, the Department notified Patrick Harrington that, because the maltreatment was both serious and recurring, the Department was disqualifying him from working in programs licensed by the Department, the Minnesota Department of Health and unlicensed Personal Care Organizations.[43]

21.    Patrick Harrington requested reconsideration of both the maltreatment and the disqualification determinations.[44]

22.    On November 30, 2004, the Department denied the request for reconsideration.[45]

23.    Also on November 30, 2004, based upon the County’s recommendation, the Department revoked Patrick and Pennie Harrington’s adult foster care license.[46]

24.    The Harringtons requested a contested case hearing.[47]

25.    The hearing in this matter took place on June 22 and 23, 2005.  The issues of maltreatment, disqualification and revocation were consolidated for hearing in accordance with Minn. Stat. § 245A.08, subd. 2a.

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

CONCLUSIONS OF LAW

1.    The Administrative Law Judge and the Commissioner of Human Services have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 245A.08, and 626.557, subd. 9(d).

2.    The Department of Human Services gave proper and timely notice of the hearing in this matter.

3.    The Department has complied with all relevant procedural requirements of statute and rule.

4.    The Department bears the burden of proof to show that maltreatment occurred by a preponderance of the evidence.[48]

5.    A.M. is a vulnerable adult within the meaning of Minn. Stat. § 626.5572, subd. 21.

6.    The Vulnerable Adults Act defines maltreatment to mean abuse, neglect, or financial exploitation.[49]

7.     “Abuse” means any sexual contact between a person providing services in a facility and a resident, patient, or client of that facility.[50]

8.    The Vulnerable Adults Act defines the term “caregiver” as follows:

An individual or facility who has responsibility for the care of a vulnerable adult as a result of a family relationship, or who has assumed responsibility for all or a portion of the care of a vulnerable adult voluntarily, by contract, or by agreement.[51]

9.    The word “facility” is defined in the Vulnerable Adults Act to include DHS-licensed residential or non-residential programs.[52]

10.     Patrick Harrington was a caregiver of A.M. within the meaning of the Vulnerable Adults Act.

11.    The Department failed to prove by a preponderance of the evidence that Patrick Herrington had a sexual relationship with A.M.

12.    There is no basis in the record to disqualify Patrick Harrington or to revoke the Harringtons’ license to provide adult foster care.

13.    The conclusions are reached for the reasons set forth in the attached Memorandum, which is incorporated herein by reference.

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

RECOMMENDATION

IT IS HEREBY RESPECTFULLY RECOMMENDED:

1.  That the Commissioner reinstate the license to provide adult foster care of Patrick and Pennie Harrington; and

2.  That the Department and the Harringtons split the cost of obtaining the testimony of Dr. Baldus ($300).

 

Dated:  August 25, 2005

 

s/Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

 

Reported:  Taped (7 tapes); no transcript prepared.

 

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 mail or as otherwise provided by law. 

MEMORANDUM

The critical issue is this case is whether A.M. is telling the truth about her relationship with Patrick Harrington.  The Administrative Law Judge is left with the overall impression that A.M. may believe in the truth of her testimony, but that her testimony about these incidents is not credible or reliable.  The main reason the Administrative Law Judge has reached this conclusion is that A.M. lied under oath in the criminal trial about having a child.  This is not an insignificant lie; it is an important fact whether one has a child or not, and it is telling that A.M. insisted on the truth of a false statement, then elaborated on it by saying that the father falsely told her the child had been killed in a car accident, at the criminal trial.  At the contested case hearing, A.M. acknowledged that she had lied at the criminal trial and explained that she did so because she wishes the child in question were her son, because she became pregnant by the child’s father but had a miscarriage.  A.M. told her sister, however, that the father made A.M. get an abortion.[53]  Despite having sworn to tell the truth on two occasions, and the acknowledgment by A.M. that she lied under oath on the first occasion, it is impossible to discern the truth of this matter.

It is not enough to say that A.M.’s claim is credible because she only lies about herself, but not about others, or that she has not lied about sexual abuse in the past.  The false story of having a child involves both herself and others, and more importantly, she told this false story under oath.  This was not a lie told because it might benefit her in some way, or get her something she wanted, or excuse her failure to do a chore or comply with a request.  In the view of A.M.’s sister, A.M. fabricated this story concerning the child because A.M. wants above all else to have a family and children of her own.  This was a substantial falsehood, which A.M. repeated frequently and consistently over time because she wanted it to be true.  The same motivation might explain the claimed relationship with Patrick Harrington.  Nor does the fact that A.M. articulated some sophisticated knowledge of sexual matters support her credibility: A.M. is 46 years old, she has been married, and she has been sexually active in the past.  Her familiarity with the details of sexual function or dysfunction cannot be solely attributed to a relationship with Patrick Harrington. 

Although A.M.’s description of the incidents at the cabin is generally consistent, the Administrative Law Judge finds it unlikely that A.M. and Patrick Harrington could have had weekly sex in the Hanover home without being discovered, given the following undisputed facts:  Pennie Harrington frequently got up at night to walk around; there were four people sleeping in the lower level, and the door to the lower level bathroom was directly opposite the door to A.M.’s room; and the Harringtons’ son typically arrived home from work around midnight, then showered before going to bed (sometimes in the room next door to A.M.’s).  Although there may be some truth to some of her story, the Administrative Law Judge cannot say with any certainty what parts are true and what parts are not.  Accordingly, the Department has not proved by a preponderance of evidence that Patrick Harrington committed serious or recurring maltreatment.  The Administrative Law Judge respectfully recommends that the Commissioner rescind the revocation and reinstate the foster care license in this case.

    Dr. Baldus appeared at the hearing at the request of both parties.  He conveyed his employer’s request that he be reimbursed for his two hours of testimonial time at a rate of $150 per hour.  The parties argued that he is a fact witness and is not entitled to reimbursement for his time.  The rules of the Office of Administrative Hearings provide that a subpoena shall be served in the manner provided by the Rules of Civil Procedure for the District Courts of Minnesota unless otherwise provided by law.  The cost of service, fees, and expenses of any witnesses subpoenaed shall be paid by the party at whose request the witness appears.[54]  The Minnesota Rules of Civil Procedure, Minn. R. 45.06, provide that a witness who is not a party to an action or an employee of a party who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.  Although not binding on this proceeding, Rule 45.06 provides useful guidance in resolving this issue.  Dr. Baldus is not a party or an employee of a party; he is a fact witness because he treated A.M. in his capacity as a licensed psychologist.  His employer is entitled to be compensated for his time.  At the hearing the parties tentatively agreed to split this cost, and after further review of the rules the Administrative Law Judge concludes they should indeed pay $150 each to Central Minnesota Mental Health Center for making Dr. Baldus available.       

                                          K.D.S.