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11-1800-16865-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of the Denial of the Application of Roseanna Strother for a License to Provide Child Foster Care |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came
on for hearing before Administrative Law Judge Barbara L. Neilson on November
22, 2005, at the Office of Administrative Hearings,
Mary M. Lynch, Assistant County
Attorney,
The Applicant, Roseanna Strother,
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,
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 ISSUE
Did the Department
properly conclude that the Applicant failed to ensure that a household member
submitted fingerprints as part of the background study, failed to disclose the
presence of an additional household member, and failed to initiate a background
study for that individual, and that, in order to protect the health and safety
of children receiving services, she should not be issued a license to provide
child foster care?
The Administrative Law
Judge concludes that the Applicant’s brother-in-law was not, in fact, living in
the household, the person the Department and County believed was living in the
household did not, in fact, live there, so the Applicant did not fail to
disclose the presence of an additional household member. While the Applicant’s husband did not submit
fingerprints in connection with his background study, the lapse should be
excused because he was traveling out of state for several months, and he later
became ill and is now deceased.
Accordingly, it is recommended that the Department of Human Services
grant the license application.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS
OF FACT
1.
The
Applicant, Roseanna Strother, was issued an Emergency Relative Foster Care
License on December 16, 2004, to care for a 4-year-old child and 2-year-old
twins. An emergency license remains in
effect for 120 days.[1]
2.
As is
customary, the Applicant promptly filed an application for a regular foster
care license.[2] On the Applicant’s child foster care
application dated December 16, 2004, she listed herself, her husband (Percy
Strother, Sr.), and her daughter (T.H.) as members of the household.[3]
3.
As part
of the licensing process, a background study is conducted on household members who
are 13 years of age and over. The Bureau
of Criminal Apprehension background study check performed with respect to Percy
Strother, Sr., showed that his offender status was “not determined.”[4] In such instances, or if the BCA check shows an
older offense history or offenses in multiple states, the County obtains the
individual’s fingerprints in order to positively identify whether the
individual was involved.[5]
4.
The
offenses disclosed in connection with Percy Strother, Sr.’s background study
involved unlawful possession with intent to sell a Schedule II narcotic, which
would constitute a disqualification but not necessarily a bar to
licensure. The County did not pursue the
disqualification or use it as a basis for the denial of the foster care license
application.[6]
5.
By
letter dated December 29, 2004, Percy Strother, Sr., was notified that he was
required to complete a fingerprint card and submit it to the agency as part of his
background study. He was asked to go to
any police department and get fingerprinted, and submit the completed
fingerprint card within 15 calendar days.[7]
6.
The
County did not receive any response to the request for fingerprints from the
Applicant or Percy Strother, Sr. No fingerprints
were ever submitted to the County.[8]
7.
Percy
Strother, Sr., who was a musician, went on the road to perform shortly after
the children were placed with the Applicant and did not return until April
2005. He was very ill by that time. He was diagnosed with liver cancer and passed
away on May 29, 2005.[9]
8.
On or
about March 4, 2005, the County’s Child Protection Screening unit received a
report that Percy Strother, Jr., the adult son of the Applicant, lived in the
Applicant’s household, and that two of the foster children reported to their
birth mother during a supervised visit that they were afraid of their uncle
Percy because he “whooped” them.[10] The report did not meet the County’s criteria
for full investigation by the child protection division, but the County’s
foster care licensing division was notified of the allegation. The County foster care division conducted a
records review investigation but found the records to be inconclusive. Ultimately, the County was unable to
determine whether Percy Strother, Jr., actually lived in the Applicant’s home.[11]
9.
Percy
Strother, Jr., did not live in the Applicant’s household, but did visit at
times. There is no evidence that he ever
took care of the foster children, and no evidence that he ever committed
maltreatment of the Applicant’s foster children or of any other children.[12]
10.
During
the investigation relating to Percy Strother, Jr., the County found out that
Frank Strother, the Applicant’s brother-in-law, had identified the Applicant’s
home as his home address on police reports.[13]
Frank Strother is a registered sex
offender. His probation officer informed
the County on March 4, 2005, that she believed that Frank had lived at the
Applicant’s address since 2003.[14]
11.
The
County removed the foster children from the Applicant’s home on or about March
4, 2005.[15]
12.
On
March 10, and March 15, 2005, Frank Strother’s probation officer informed the
County by e-mail that Frank was reporting that he had moved to an address on
13.
County
staff never observed Frank Strother living in the Applicant’s home.[17]
14.
Frank
Strother did not, in fact, ever live in the Applicant’s home. The Applicant found out later that her
husband, Percy Strother, Sr., had given Frank Strother (his brother) permission
to use their address as a mailing address because he was living in a low income
building with another brother and there were restrictions on the number of
people allowed to live there.[18]
15.
By
letter dated May 26, 2005, the County recommended that the Department deny the
Applicant’s application for a child foster care license, based on allegations
that the Applicant failed to disclose changes in household conditions, failed
to secure the County’s approval of adult roomers or boarders, knowingly withheld
relevant information, and failed to cooperate with the background study
requiring fingerprints of her spouse.[19]
16.
By
letter dated August 18, 2005, the Applicant was notified that the Commissioner
of Human Services was denying her application to provide child foster care,
based upon the recommendation of
17.
On
September 1, 2005, the Department of Human Services issued the Notice of and
Order for Hearing in this matter, setting the matter on for hearing on November
22, 2005. The Notice of and Order for
Hearing was served by mail on the Applicant on October 12, 2005.
18.
A
Protective Order was entered in this matter on November 22, 2005.
19.
At the
start of the hearing, the parties waived the requirement set forth in Minn.
Stat. § 245A.08, subd. 4, requiring service of the Administrative Law Judge’s
report by certified mail, and agreed that first class
Based upon the foregoing Findings of Fact,
the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Commissioner of Human Services and
the Administrative Law Judge have jurisdiction in this matter under Minn. Stat.
§§ 14.50 and 245A.08.
2. The Department of Human Services gave
proper and timely notice of the hearing in this matter.
3. The Department and
4. Minn. Stat. § 245A.05 states, “The commissioner may deny a
license if an applicant fails to comply with applicable laws or rules, or
knowingly withholds relevant information from or gives false or misleading
information to the commissioner in connection with an application for a license
or during an investigation.” Minnesota
Rules part 2960.3020, subpart 11(D), similarly states that the Commissioner
“shall deny a license if the applicant fails to fully comply with laws or rules
governing the program or fails to cooperate with a placing or licensing
agency.”
5. At a hearing on denial of an application,
the applicant bears the burden of proof to demonstrate by a preponderance of
the evidence that the applicant has complied fully with Minn. Stat. Chapter
245A and other applicable laws or rules and that the application should be
approved and a license granted.[22]
6.
7.
8. Minn. Rules part 2960.3020, subp. 7, states that license
holders “must immediately notify the licensing agency of . . . household member
changes that affect the terms of the license or the ability of the license
holder to provide care to children.”
Subpart 8 of the same rule specifies that license holders must not have
adult roomers or boarders in the foster home without the licensing agency’s approval,
and indicates that roomers or boarders are subject to background studies.
9. Minn. Rules part
2960.3060, subpart 4, states that applicants “must demonstrate the ability to .
. . work within agency and state policies.”
10. The Applicant did not
knowingly withhold relevant information or give false or misleading information
in her application for child care licensure within the meaning of Minn. Stat. §
245A.05. Because the Applicant’s
brother-in-law, Frank Strother, did not actually live in her household, the
Applicant accurately and completely disclosed the identities of individuals
residing in her home who were subject to background studies. Although the Applicant’s husband did not
promptly return fingerprints to the County in connection with his background
check, this failure should be excused because he was out of state for several
months shortly after the request was made, and he thereafter became ill and
died.
11. The Applicant has
demonstrated by a preponderance of the evidence that she has complied fully
with the applicable laws and rules or that any violations that may have
occurred should be excused, and that the application should be approved and a
license granted.
12. These Conclusions are
reached for the reasons discussed in the attached Memorandum, which is hereby
incorporated by reference in these Conclusions.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: That the Order denying the application of Roseanna
Strother for a license to provide child foster care be reversed and the
application be GRANTED.
Dated: December 21, 2005.
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s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Taped
(one tape)
At the time the County made its
recommendation to deny the Applicant’s foster care license application and the
Department of Human Services issued the Order of Denial, they were not aware of
her husband’s prolonged absence from the household, his illness due to cancer,
or his death. The Applicant’s husband’s failure
to return his fingerprints is understandable given his absence and illness, and
the Applicant’s failure to ensure that the fingerprints were returned is also
understandable given her role in caring for her husband during his final
months. The Administrative Law Judge
recommends that the technical violation of the statute and rule that may have
occurred be excused under these circumstances.
The discovery of the fact that Frank
Strother, a registered sex offender, was giving police officers and his probation
officer the Applicant’s address as his home address understandably caused
concern and resulted in County personnel immediately removing the foster
children from the Applicant’s home.
However, the Applicant and her daughter provided credible testimony that
Frank did not, in fact, live in the Applicant’s home. Rather, the Applicant’s husband gave his
brother Frank permission to use their address because there were restrictions
on the number of people who were permitted to reside in the low income housing
Frank actually shared with another brother.
Frank’s probation officer informed the County by e-mail dated March 15,
2005, that she met with Frank at an address on
The Administrative Law Judge concludes that
the Applicant has demonstrated by a preponderance of the evidence that she has
complied fully with the applicable laws and rules or that any violations that may
have occurred should be excused.
Accordingly, the Administrative Law Judge recommends that the
application be approved and a license be granted.
BLN
[1] Testimony of Roseanna Strother, Mary Finstad.
[2] Ex. 2; Testimony of M. Finstad.
[3] Testimony of M. Finstad; see Minn. Stat. § 245C.03.
[4] Ex. 4.
[5] Testimony of M. Finstad.
[6] Ex. 1;Testimony of M. Finstad.
[7] Ex. 5; Testimony of M. Finstad.
[8] Testimony of M. Finstad.
[9] Testimony of R. Strother; Ex. 16.
[10] Exs. 6, 8.
[11] Exs. 1, 8, 9; Testimony of M. Finstad.
[12] Testimony of R. Strother, A. Higgins.
[13] Exs. 1, 8, 9, 13; Testimony of M. FInstad.
[14] Ex. 10; Testimony of M. Finstad.
[15] Ex. 9; Testimony of M. Finstad.
[16] Exs. 11, 12.
[17] Testimony of M. Finstad.
[18] Testimony of Roseanna Strother, Anita Higgins.
[19] Ex. 1; Testimony of M. Finstad.
[20] Ex. 14.
[21] Ex. 15; Testimony of M. Finstad.
[22] Minn. Stat. § 245A.08, subd. 3(b).