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OAH 4-1800-17209-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Revocation of the Family Child Care License of Malinda-Mae Pennington Peschong |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter was heard by Administrative Law Judge Bruce H. Johnson on May 24, 2006, at the Anoka County Courthouse. The record closed on May 24, 2006, when the hearing ended.
Francine P. Mocchi, Assistant Anoka County Attorney, Government Center, 2100 Third Avenue, Anoka, MN 55303, appeared on behalf of Anoka County Social Services (County) and the Minnesota Department of Human Services (Department).
George C. Riggs, George C. Riggs and Associates, 888 Highway 10 N.E, Blaine, MN 55434-2333, appeared on behalf of Malinda-Mae Pennington Peschong (Licensee).
Should the Licensee’s family child care license be revoked because she violated statutes and rules that are applicable to family child care licensees?
The Administrative Law Judge concludes that the Licensee did violate statutes and rules that are applicable to her family child care licensure. The Commissioner’s order revoking the license should therefore be affirmed.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Malinda-Mae Pennington Peschong (the Licensee) has been licensed to provide family child care in her home at 8106 Fairmont Circle NE, Fridley, Minnesota (sometimes Fairmont Circle home) since May 2001.[1] The Licensee has a Class C-2 family child care license.[2] Since 2005, she has been licensed to provide care for 12 children, and she currently has 8 children in her care. Licensee has been providing day care from 7 a.m. to 9:30 p.m., Monday through Thursday and Friday, 7 a.m. to 5:30 p.m. However, on March 14, 2005, the Licensee informed the County that she would no longer provide evening care.[3]
2. Debbie Hambleton has been employed by the County for eleven years.[4] She has worked for eight years as a social worker in the County’s child care licensing unit. Ms. Hambleton conducts annual visits and inspections of child care homes, does background studies, identifies rule violations and investigates complaints and recommends negative action when appropriate.[5] Ms. Hambleton has been the Licensee’s licensing social worker.
3. In 2001 the Licensee was married to Gregory Pennington, from whom she was divorced in September 2003.[6] Shortly after her divorce, the Licensee became involved in an ongoing romantic relationship with Ronald Brown .[7]
4. When the Licensee began dating Mr. Brown in 2003, she became aware that he had a criminal history, including felony convictions.[8] In 1993, Mr. Brown was arrested for felony theft,[9] and he pled guilty to that charge in Hennepin County District Court on January 18, 1994.[10] Additionally, on May 7, 1999, Mr. Brown was arrested and charged with being a felon in possession of a firearm; he was subsequently convicted by a jury on that charge.[11]
5. Early on Monday morning, September 22, 2003, at approximately 3:49 a.m., the Licensee called the Fridley Police Department and reported that Mr. Brown had assaulted her at her Fairmont Circle home.[12] When officers arrived, the Licensee told them that Mr. Brown had pulled her hair. The police officers arrested Mr. Brown on an outstanding Hennepin County misdemeanor warrant. At the time of his arrest, Mr. Brown told the officers that he had been dating the Licensee off and on for the previous nine years and that they would date, break-up, and then get back together again. The Licensee told the officers that she had been dating Mr. Brown for four months prior to September 22, 2003, but refused to answer any of the officer’s questions about the assault.[13] The Licensee declined to file assault charges against Mr. Brown.[14]
6. On April 17, 2004, the Minneapolis Police Department executed a search warrant at 2432 Stevens Avenue in Minneapolis and arrested Ronald Brown for possession of 122 kilograms of marijuana.[15] Following that arrest, Mr. Brown was charged with felonies in both state and federal courts.[16]
7. On Sunday morning, May 23, 2004, at approximately 1:59 a.m. the Licensee called the Fridley Police Department and reported that Mr. Brown was breaking into her Fairmont Circle home.[17] Upon arrival, police officers found the rear door to the house open and its locking mechanism on the floor. They saw Mr. Brown leaving the house through the front door. Mr. Brown had approximately 15 credit cards belonging to the Licensee in his pocket. The Licensee told the officers that Mr. Brown frequently stayed overnight at the house, but that he did not live there. She also said that she had previously given him a key to the house, but had changed the locks after he had not returned the key. Mr. Brown was arrested for burglary.[18]
8. Henry J. Sol Jr. is a friend of Mr. Brown.[19] Mr. Sol knew that Mr. Brown had an ongoing relationship with the Licensee, and that Mr. Brown could become very argumentative when drinking.[20] The Licensee called Mr. Sol several times to come and get Mr. Brown from her house in order to avoid calling the police and to avoid getting Mr. Brown in trouble.[21]
9. Sometime in the fall of 2004, Mr. Brown was convicted in federal court of drug-related charges stemming from his April 17, 2004 arrest. Mr. Brown was not immediately incarcerated but was allowed to cooperate with federal authorities in an effort to reduce his sentence.[22] The state criminal charges against Mr. Brown stemming from the same incident were dismissed on November 5, 2004.[23]
10. In the fall of 2004, Jeanine Wilson, a friend of the Licensee, began working with the Licensee as a co-provider.[24] Ms. Wilson has been licensed by the County since May 2001.[25] The Licensee told Ms. Wilson that Mr. Brown had criminal record before she began working for the Licensee.[26] Ms. Wilson did not feel threatened by Mr. Brown and found him to be well-mannered.[27]
11. On Sunday, November 7, 2004, at approximately 2:58 a.m. The Licensee called 911 and reported that her live-in boyfriend, Ronald Brown, was breaking the front porch window at her Fairmont Circle home and trying to enter it.[28] When the police arrived, the Licensee told the officers that Mr. Brown had already fled the area. She said she and Mr. Brown had gotten into an argument while driving home from a bar earlier in the evening and that he had hit her on her head with a closed fist. Mr. Brown got out of the car and the Licensee continued home. The License said that a few minutes later, Mr. Brown arrived at their residence with two of his friends, demanded to be let in the house and began to break the glass window on the front porch when the Licensee refused to open the door.[29] The Licensee then let Mr. Brown in the house. Once inside, Mr. Brown grabbed the Licensee’s purse and demanded the keys to her vehicle. He grabbed the Licensee by the hair and threatened to smash her head through the front porch window. Mr. Brown hit the Licensee, cutting her lower lip. The Licensee told the officers that Mr. Brown had beat her up before in the past.[30]
12. As a result of the incident on November 7, 2004, Mr. Brown was subsequently arrested on a charge of domestic assault. He pled guilty to that charge in Anoka County District Court on February 2, 2005.[31]
13. On Friday, January 21, 2005, at approximately 11:32 a.m., a Fridley police officer drove by the Licensee’s Fairmont Circle home and saw her outside in her driveway with blood on her right hand.[32] The Licensee told police that she had had a verbal argument with a male friend, and that when the male friend backed her car out of the driveway she became so angry she punched the car window, cutting her hand. The Licensee declined medical attention and refused to give the name the male party or provide any further information to the officer.[33] The police took no further action regarding this incident.[34]
14. The Licensee has participated in the MLFCCA Food Program since she began providing daycare.[35] The MLFCCA program reimburses day care providers for meals served to children from income-eligible families.[36] According to MLFCCA records, the Licensee reported that on January 21, 2005, she provided breakfast to eight children, a morning snack to seven children and lunch to eight children.[37]
15. In February 2005, the Licensee prepared an application for renewal of her family child care license.[38] The application contained no reference to Ronald Brown.[39]
16. In February 2005, Ms. Hambleton received a telephone complaint from a parent who had used the Licensee’s day care. The complainant reported that Mr. Brown was residing in the Licensee’s home, that he was a convicted felon, and that he had not had a background check. The complainant also reported that police had been called to the Licensee’s home several times on domestic issues.[40]
17. Ms. Hambleton began an investigation and obtained copies of police reports relating to calls at the Licensee’s home from the Fridley Police Department. She observed that Mr. Brown was mentioned in several of the police reports and, that he had given the Licensee’s address as his home address.[41]
18. On February 14, 2005, Ms. Hambleton made an unannounced visit to the Licensee’s home during day care hours.[42] She asked the Licensee if Mr. Brown lived in the home. The Licensee said he did not live in the home.[43] Based on the information she had obtained, Ms. Hambleton told the Licensee that Mr. Brown was required to have a background study, and Ms. Hambleton issued a correction order for the Licensee’s failure to report Mr. Brown’s presence.[44] The Licensee signed the correction order on the same day. While Ms. Hambleton was at the house Maurice Ward came to the door. The Licensee identified Mr. Ward as her boyfriend. Ms. Hambleton requested that the Licensee provide background studies on Mr. Ward and on all other adults who could have regular contact with children.[45]
19. On February 15, 2005, Ms. Hambleton sent the Licensee a letter, stating that, based on relevant police reports, the County had determined that Mr. Brown had been living in her home, notwithstanding her denial. Ms. Hambleton also provided background study forms to be completed by Ms. Wilson and Maurice Ward, and another unnamed individual.[46]
20. On March 14, 2005, the Licensee called Ms. Hambleton and reported that she would no longer be conducting evening daycare. She therefore believed that it was no longer necessary to have background studies performed.[47] Ms. Hambleton told the Licensee that the County was still insisting on the background studies being done.[48] The Licensee subsequently spoke to Ms. Hambleton’s supervisor, who agreed that the background study for Maurice Ward needed to be performed, but that background studies did not need to be completed on some of the other individuals.[49]
21. On April 6, 2005, Ms. Hambleton received a complaint from a neighbor of the Licensee that the police had been called to the Licensee’s home.[50]
22. On April 14, 2005, Ms. Hambleton and another social worker conducted a relicensing visit. The Licensee stated that the only people living in her home at that time were her daughter and herself.[51]
23. On Wednesday, April 20, 2005, at approximately 10:27 p.m., the Licensee again called 911 and reported that she had been assaulted in her home.[52] The Licensee refused to give the name of the person who assaulted her and hung up.[53] When the officers arrived at the home they found the Licensee bleeding from a cut on her nose. Ms. Wilson, Mr. Brown and the Licensee’s minor daughter were also present in the house. The daughter was sleeping in her bedroom and did not wake up during the incident. Ms. Wilson told the officers that she had been babysitting for the Licensee when “Brown came home and went to bed.”[54] The Licensee came home later and went upstairs. Ms. Wilson then heard the Licensee and Mr. Brown having a verbal argument. The Licensee was asking Mr. Brown why he had hit her. Ms. Wilson went to the bedroom and saw the Licensee throwing things at Mr. Brown while he was in bed. Mr. Brown got out of bed and attempted to hit the Licensee. Ms. Wilson then stepped in and broke up the argument. When Wilson had walked away from the bedroom, she heard what sounded like someone being punched and turned around to see the Licensee bleeding from her nose.
24. The Licensee refused to discuss the April 20, 2005, incident with the officers, saying she did not want to lose her daycare license. However, Mr. Brown told the officers that he lived at the Fairmont Circle home with the Licensee. He also informed the officers that he had been convicted of possession of drugs and had been cooperating with federal authorities to reduce his prison time.[55] The officers arrested Mr. Brown for domestic assault and detained him.[56]
25. The federal court subsequently sentenced Mr. Brown to a term of imprisonment in a Wisconsin facility. The Licensee has visited Mr. Brown while he has been incarcerated.[57]
26. The Licensee never informed the County of her relationship with Mr. Brown or his presence in her home.[58] Although the Licensee repeatedly called the police and others to obtain assistance in removing Mr. Brown from her home been 2003 and 2005, there is no evidence that the Licensee ever sought an Order for Protection to exclude Mr. Brown from her home.
27. The Licensee concealed her relationship with Mr. Brown and his occupation of her day care home from the County. She further repeatedly refused to provide information to the police and the County about Mr. Brown’s presence in her home and his assaults upon her for the express purpose of concealing information that she believed would place her family child care license in jeopardy.
28. On May 5, 2005, the County and the Department issued and served an order temporarily and immediately suspending the Licensee’s license.[59] That order of temporary and immediate suspension was vacated by the Department on June 1, 2005.[60]
29. The Licensee provided no services to children in care during the period of suspension.[61] Nevertheless, the Licensee submitted claims to the MLFCCA food program for reimbursement for food served to children in care for a period of seventeen days while her license was under suspension.[62] Moreover, records from the MLFCCA food program indicate that the Licensee submitted claims for reimburse for food served to children during the 17 days in May 2005 when the license was temporarily and immediately suspended.[63]
30. In connection with the temporary suspension proceeding in May 2005,[64] a number of parents of children in the Licensee’s care provided written statements expressing their belief that the Licensee provided exemplary care to their children.[65] The Licensee also solicited written statements from others who were not parents of children in care praising the Licensee’s childcare abilities.[66]
31. The Licensee customarily requests parents to sign their children in on attendance sheets when they arrive at her child care home. Sometimes those parents make erroneous entries on those attendance sheets.[67]
32. On March 21, 2006, the Department issued an Order of Revocation of the Licensee’s family child care license. The Order stated that the Licensee had knowingly withheld relevant information from and given false or misleading information to the County, that the Licensee had received a correction order for failing to report that an individual was living/staying in her home and had failed to submit a background study for this individual following a correction order, and that she had exposed children to domestic violence during the January 21, 2005, incident. The Order provided information about the Licensee’s appeal rights.
33. The Licensee filed a timely appeal of the Order of Revocation, and this contested case proceeding ensued.
34. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references.
35. To the extent that the Memorandum that follows explains the reasons for these Findings of Fact and contains additional findings of fact, including findings on credibility, the Administrative Law Judge incorporates them into these Findings.
36. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. Minnesota law gives the Administrative Law Judge and the Commissioner authority to conduct this contested case proceeding and to make findings, conclusions, and recommendations or a final order, as the case may be.[68]
2. The Department and the County gave proper and timely notice of the hearing, and they have also fulfilled all procedural requirements of law and rule so that this matter is properly before the Administrative Law Judge.
3. In this proceeding, the Commissioner has the burden to demonstrate that reasonable cause existed for the revocation of the Licensee’s family child care license, as provided in Minn. Stat. § 245A.08, subd. 3. If the Commissioner makes that showing, the burden of proof shifts to the Licensee to demonstrate by a preponderance of the evidence that she was in full compliance with the laws and rules that the Commissioner alleges were violated.
4. The purpose of family child care licensure statutes and rules is to protect the care, health and safety of children.[69]
5. In order to accomplish that purpose, Minn. Stat. § 245A.07, subd. 3, provides in part:
Subd. 3. License suspension, revocation, or fine. (a) The commissioner may suspend or revoke a license, or impose a fine if a license holder fails to comply fully with applicable laws or rules, if a license holder or an individual living in the household where the licensed services are provided has a disqualification which has not been set aside under section 245C.22, or if a license holder knowingly withholds relevant information from or gives false or misleading information to the commissioner in connection with an application for a license, in connection with the background study status of an individual, or during an investigation.
6. The Commissioner must conduct a background study on individuals “age 13 or older living in the household where the licensed program will be provided”[70] or “who, without providing direct contact services at a licensed program, may have unsupervised access to children … receiving services from a program, when the commissioner has reasonable cause.”[71]
7. The term “individual living in the household” as it appears in Minn. Stat. §§ 245C.03, subd. 1(a) (2), and 245A.07, subd. 3, means an individual who occupies the home.[72] Between September 22, 2003, and April 20, 2005, Ronald Brown was an individual living in the Licensee’s household within the meaning of Minn. Stat. §§ 245C.03, subd. 1(a) (2).[73] For that reason, he was a person on whom the Commissioner was required to conduct a background study.
8. Between September 22, 2003, and April 20, 2005, Ronald Brown was also an individual who, without providing direct contact services at the Licensee’s day care program, may have had unsupervised access to children in that program, within the meaning of Minn. Stat. § 245C.03, subd. 1(a) (6). For that further reason, he was a person on whom the Commissioner was required to conduct a background study.
9. License holders must submit completed background study forms to the Commissioner before individuals specified in section 245C.03, subdivision 1, may have direct contact or unsupervised access to children in a licensed program.[74] A license holder's failure or refusal to cooperate with the Commissioner in conducting background studies or making disqualification determinations is reasonable cause to disqualify a subject, deny a license application, or immediately suspend or revoke a license or registration.[75]
10. A preponderance of the evidence established that the Licensee failed and refused to cooperate with the Commissioner in conducting a background study and in making a disqualification determination concerning Ronald Brown. As a consequence, the Licensee has not been in full compliance with applicable licensure statutes and rules.
11. Minn. R. 9502.0375, subp. 2, requires a licensed day care provider to inform his or her licensing agency within 30 days of any change in the regular membership of the household within the day care residence. A preponderance of the evidence established that the Licensee failed to inform her licensing agency within 30 days of changes in the regular membership of the household within her day care residence. As a consequence, the Licensee has not been in full compliance with applicable licensure statutes and rules.
12. Minn. Stat. §§ 245C.14, subd. 1(a) and 245C.15, subd. 3, provide that a person who has been convicted of felony theft[76] must be disqualified from having direct contact or access to a person receiving services from a license holder if the person so convicted is a person “age 13 or older living in the household where the licensed program will be provided”[77] or if that person may have had unsupervised access to children in that program.[78]
13. An individual who commits felony theft is disqualified from any position allowing direct contact with children in a day care program for a period of fifteen years.[79]
14. A preponderance of the evidence established that Ronald Brown pled guilty to a charge of felony theft on January 18, 1994, and that he was therefore subject to a fifteen-year disqualification that has not been set aside.
15. A preponderance of the evidence further established that Mr. Brown had lived in the Licensee’s household at various times between September 22, 2003, and April 20, 2005, and that he also may have had unsupervised access to children in that program during that period, all in violation of Minn. Stat. § 245A.07, subd. 3. As a consequence, the Licensee’s program has not been in full compliance with applicable licensure statutes and rules.
16. A preponderance of the evidence established that the Licensee knowingly withheld relevant information from and gave false or misleading information to the County and the Department in connection with the background study status of Ronald Brown. The Licensee therefore violated Minn. Stat. § 245A.07, subd. 3, and has not been in full compliance with applicable licensure statutes and rules.
17. A preponderance of the evidence established that the Licensee gave false or misleading information relating to meals served to children in care while her license was suspended in May 2005 in connection with the County’s investigations of her compliance with program requirements. The Licensee therefore violated Minn. Stat. § 245A.07, subd. 3, and has not been in full compliance with applicable licensure statutes and rules.
18. Minn. Stat. § 245A.07, subd. 3, provides that “[w]hen applying sanctions authorized under this section, 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.”[80]
19. In making its determination to order revocation of the Licensee’s license to provide family child care, the Department gave appropriate consideration to the nature, chronicity, or severity of the Licensee’s violations of law and rule and the effect of those violations on the health, safety, or rights of persons served by the program.
20. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
21. The Memorandum that follows explains the reasons for these Conclusions, and the Administrative Law Judge therefore incorporates that Memorandum into these Conclusions.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge therefore respectfully recommends that the Order revoking Malinda Mae Pennington Peschong’s license to provide child care be AFFIRMED.
Dated: June 26th, 2006
s/Bruce H. Johnson
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BRUCE H. JOHNSON Administrative Law Judge |
Reported: Taped, 5 tape(s)
No transcript prepared
This report is a recommendation, not a final decision. The Commissioner of Human Services will issue a final decision after reviewing the administrative record, and he may adopt, reject or modify the Administrative Law Judge’s Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after receiving this recommended decision in which to file any exceptions to the report with the Commissioner.[81] Parties should contact the office of Kevin Goodno, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155, (651) 296-2701 to find out how to file exceptions. Since the Commissioner must issue his final order within 10 working days from receipt of the Administrative Law Judge’s recommended decision,[82] the parties are requested for file any exceptions as soon as possible.
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 Minnesota law, the Commissioner of Human Services is required to serve his final decision upon each party and the Administrative Law Judge by first-class mail.
The Commissioner has the burden of demonstrating that reasonable cause existed for the revocation of the Licensee’s family child care license. The Commissioner may demonstrate reasonable cause by submitting statements, reports, or affidavits to substantiate the allegation that the Licensee violated the rules and statutes governing her license. Here, the Commissioner met that initial burden. Under the statute, the burden then shifted to the Licensee to establish by a preponderance of the evidence that she was in full compliance with all applicable licensure statutes and rules, and the ALJ concluded that she failed to meet that burden.
It was undisputed that Ronald Brown is a convicted felon who is disqualified from having direct contact with children in a day care program or from potentially having unsupervised access to them. Having such an individual “living in the household where the licensed services are provided” violates Minn. Stat. § 245A.07, subd. 3. However, the Licensee argues that Mr. Brown never “lived” in her household within the meaning of the statute. Rather, she testified that although Mr. Brown may have made a number of social visits to her home during an eighteen-month period, including some overnight visits, those visits were too infrequent and sporadic to be characterized as “living” there. She goes on to argue that the Department’s evidence that Mr. Brown’s presence in her day care home went beyond an occasional and casual social context is circumstantial, and that there is no evidence of any contact between him and children in care.
However, the circumstantial evidence that Mr. Brown’s contact with the Licensee in her home went beyond occasional social contact was substantial and established a consistent pattern of a more regular living arrangement between the two over a period of months.[83] For example, on May 23, 2004, Mr. Brown told police officers that he frequently stayed overnight at the Licensee’s home.[84] The Licensee told police that Mr. Brown had had his own key to her house for some period of time.[85] In a written statement, Henry Sol, Jr., said that the Licensee had called him several times to come and get Mr. Brown from her house in order to avoid calling the police.[86] In a statement to police on November 7, 2004, the Licensee stated that she and Mr. Brown had had an argument while “driving home” from a bar and referred to Mr. Brown as having arrived at “their” residence in Fridley.[87] She also referred to Mr. Brown as her “live-in” boyfriend.[88] On April 20, 2005, Ms. Wilson, who was babysitting for the Licensee, told police that Mr. Brown “came home and went to bed.” Mr. Brown told police that he was living at the Licensee’s home.[89] In short, the greater weight of the evidence established that the Licensee had an ongoing living arrangement with Mr. Brown between September 22, 2003, and April 20, 2005, although it may have been interrupted from time to time by arguments and incidents of domestic violence.
To support her contention of only irregular social contacts between Mr. Brown and herself, the Licensee also presented the testimony of Roxanne Bye, Mr. Brown’s mother. Ms. Bye testified that Mr. Brown had lived in her home throughout the period in question. However, as noted above, that evidence also contradicted much of the other evidence in the record. Moreover, Ms. Bye testified that on at least one occasion she drove Mr. Brown to the licensee’s home to enable him to pick up clothes and other possessions that were there.[90] She also testified that she and her son considered the Licensee’s daughter to be a member of their family—a relationship that implies something more than casual social contact between Mr. Brown and the Licensee.
In essence, the Licensee argues that the term “living in the household where the licensed services are provided” requires a showing of continuous, stable habitation of a day care home over an extended period of time. However, the ALJ concludes that is too narrow a definition of the word “living,” as it is used in the applicable statutes. The dictionary definition of the word “live,” in the sense of the word that is germane here, is simply “to occupy a home.”[91] The legislature’s purpose in enacting Minn. Stat. ch. 245C, relating to disqualification, was to protect the care, health and safety of children in care by restricting contacts between children in care and persons who have been convicted of certain offenses. To give effect to that purpose, the ALJ concludes that the legislature intended the term “living in a household” to include not only permanent residents but also frequent occupants whose presence is likely to result in unsupervised contacts between those occupants and children in care.[92] Finally, if the legislature had intended the narrow reading of “living in the household” that the Licensee advocates, it would likely have chosen language that better connotes a more restrictive in interpretation of the scope of chapter 245C. For example, the term “reside” is defined as “to dwell permanently or continuously: occupy a place as one’s legal domicile.”[93] In summary, the ALJ concludes that between September 22, 2003, and April 20, 2005, Mr. Brown was “living” in the Licensee’s household within the meaning of Minn. Stat. §§ 245A.07, subd. 3, and 245A.03, subd. 1(a)(2). Finally, even if Mr. Brown were not found to have lived in the Licensee’s day care home, his presence in the home clearly placed him in a position to have unsupervised access to children in care—a position that also requires a background study.[94]
Accordingly, by permitting Mr. Brown to live in her day care home, the Licensee violated Minn. Stat. § 245C.09, by refusing to cooperate in having a background study completed for Mr. Brown. She also violated Minn. Stat. § 245A.07, subd. 3, by knowingly withholding information relevant to that background study and by giving the County false or misleading information relating to a background study. Finally, Minn. Stat. § 245A.07, subd. 3, provides that the mere presence of a disqualified individual in a day care home is grounds for negative licensure action.
The Licensee’s credibility was further undermined by her deliberate attempts to conceal Mr. Brown’s presence from the County. The County repeatedly asked the Licensee about Mr. Brown, but she denied that he lived or stayed at her home.[95] There was also evidence that the Licensee refusal to press domestic assault charges against Mr. Brown when police were called to her home was motivated by concern that doing so would put her day care license at risk.[96]
Finally, the Licensee’s credibility was also seriously compromised by the way she attempted to explain the reimbursement requests she had made to the MLFCCA food program for meals she purportedly provided to children in care while her license was suspended in May 2005. The Licensee testified that she did not provide day care services while her license was suspended, and that testimony was corroborated by the statements of parents.[97] However, it was undisputed that the Licensee submitted a request for reimbursement for seventeen consecutive days of meals while her license was suspended. That reimbursement request was necessarily based on false information. The Licensee testified that her claim for reimbursement for meals during that period was a mistake caused, in part, by poor recording by parents on attendance sheets and, in part, by her own faulty memory.[98] However, since parents did not even bring their children to her day care home during the temporary suspension period, they necessarily could not have made “mistakes” on the attendance sheets. Moreover, her testimony that the erroneous reimbursement claims resulted from her own faulty memory is not credible. It is difficult to believe that when she made her meal reimbursement claims, she forgot that she had not provided any day care services in May 2005 while her license was suspended. That is why the ALJ has also concluded that the Licensee also violated Minn. Stat. § 245A.07, subd. 3, by giving the County false or misleading information about why she had made a reimbursement claim for meals served to children in care while her license was suspended.
In view of the above, the ALJ concludes that the Licensee has committed several substantial violations of applicable licensure statutes and rules and recommends that the Order of Revocation issued on March 21, 2006, be affirmed.
B.H.J.
[1] Testimony of Debbie Hambleton.
[2] Testimony of Licensee.
[3] Id.; Ex. 1 at pp. A-100023 and A-100034-35.
[4] Test. of D. Hambleton.
[5] Id.
[6] Test. of Licensee.
[7] Id.; Ex. 1, at p. A-100044. Mr. Brown has sometimes also been known as Mark Eugene Love.
[8] Test. of Licensee.
[9] Ex. 1 at pp. A-100063-65
[10] Ex. 1 at p. A-100068.
[11] Ex. 1 at pp. A-100070-72.
[12] Ex. 1 at pp. A100043-44.
[13] Id.
[14] Id.
[15] Ex. 1 at p. A-100074.
[16] Ex. 1 at p. A-100073
[17] Ex 1 at pp. A-100045-46.
[18] Id.
[19] Ex. 2 at p. 42.
[20] Id.
[21] Id.
[22] Ex. 1 at p. A-100057.
[23] Id.
[24] Id.; Statement of Jeanine Wilson, Ex. 1 at pp. A100081 and A-100011. The Licensee testified that Ms. Wilson began working for her in 2003. Ms. Wilson’s statement reports that she began working for the Licensee in the fall of 2004. Ex 1, at p. A100081. The Administrative Law Judge adopts Ms. Wilson’s reported start date, but notes that the inconsistency is not material to the Conclusions and Recommendation.
[25] Ex. 1 A-100023.
[26] Statement of Jeanine Wilson, Ex. 1 at p. A-100082.
[27] Id.
[28] Ex. 1 at pp. A-10037-39 and A100054-55.
[29] Ex. 1 at p. A-100055.
[30] Ex. 1 at pp. A-10037-30 and A100054-55.
[31] Ex. 1 at p. A-100047.
[32] Ex. 1 at p. A-100039.
[33] Id.
[34] At the hearing, the Licensee gave a different account of the January 21, 2005 incident. She said that she was coming home from a counseling session and was frustrated. A man named Darryl (last name unknown by Licensee) had been riding in the car with the Licensee. When they arrived at the Fairmont Circle home, Darryl went inside to use the bathroom. The Licensee remained outside and punched the window in her car out of frustration. A patrol car happened to driving by and the officer asked the Licensee if she needed any assistance. About the same time, Darryl came back out of the home. The Licensee declined the officer’s offer of assistance. (Testimony of Licensee.) Inconsistencies between the documentary evidence and the Licensee’s testimony such as these were a major reason why the ALJ did not accord much credibility to the Licensee’s testimony. See discussion in the Memorandum that follows.
[35] Id.
[36] Id.
[37] Ex.1 at p. A-100080. Nevertheless, the Licensee testified that the daycare was closed on Friday, January 21, 2005 and no children in care were present at the home. (Testimony of Licensee.) She maintained that the MLFCCA records for January 21, 2005 are inaccurate because she misreported the information. (Id.; Ex. 1 at p. A-100077.)
[38] Id.; Ex.1 at p. A-100011.
[39] Id.
[40] Ex. 1 at p. A100001; Test. D. Hambleton.
[41] Test. of D. Hambleton.
[42] Id.
[43] Id.
[44] Ex. 1 at p. A-100036.
[45] Ex. 1 at p. A-100001.
[46] Ex. 1 at p. 100034.
[47] Ex. 1 at p. A-100035.
[48] Id.
[49] Id. Both the exhibit and the testimony at the hearing were ambiguous about whether the individuals who would not need background studies included Mr. Brown.
[50] Ex. 1 at p. A-100003.
[51] Test. of Debbie Hambleton.
[52] Ex. 1 at pp. A-100056-58.
[53] Id.
[54] Ex. 1 at pp. A-100056-58; testimony of Officer Richard Cesar.
[55] Id.
[56] Id.
[57] Test. of Licensee.
[58] Id.
[59] Test. of D. Hambleton; Ex. 1 at p. A-100005.
[60] Ex. 1 at p. A-100007.
[61] Test. of Licensee.
[62] Test. of D. Hambleton; Ex. 1 at pp. A-100030-35.
[63] Test. of D. Hambleton; Ex. 1 at pp. A-100030-33.
[64] Test. of Licensee.
[65] Ex. 2, stapled material. Statements from parents include Maria Roberts, Deborah Monden, Shantelle Crowe, Katherine Sorenson, Jon Helland, Jeremy and Jill Hansen, Essie Pschong, Jamie Blevins, Sara Zappa, Teresa Sampson, Mindy Braunbergur, Bobbie Cooper, Mitch and Cathy Nyland, Tanya Trottier, and Sarah Marben.
[66] Ex. 2 at p. 16.
[67] Test. of Licensee.
[68] Minn. Stat. §§ 14.50, 14.57, 14.69; 245A.05 through 245A.08; and Ch. 245C.
[69] Minn. Stat. § 245A.07, subd. 1; Minn. R. 9502.0325.
[70] Minn. Stat. § 245A.03, subd. 1(a) (2).
[71] Minn. Stat. § 245A.03, subd. 1(a) (6).
[72] See discussion in the Memorandum that follows.
[73] Id.
[74] Minn. Stat. § 245C.04, subd. 1(d).
[75] Minn. Stat. § 245C.09, subd. 1.
[76] Minn. Stat. § 609.52.
[77] Minn. Stat. § 245A.03, subd. 1(a) (2).
[78] Minn. Stat. § 245A.03, subd. 1(a) (6).
[79] Minn. Stat. §§ 245C.14, subd. 1(a)(1) and 245C.15, subd. 2.
[80] Minn. Stat. § 245A.07, subd. 1.
[81] Minn. Stat. § 14.61.
[82] Id.
[83] Other issues relating to the Licensee’s general credibility are discussed below.
[84] Finding No. 7.
[85] Id.
[86] Finding No. 8.
[87] Finding No. 11; see also Ex. 1 at p. A-100055.
[88] Ex. 1 at p. A-100037.
[89] Testimony of Officer Richard Cesare.
[90] Testimony of R. Bye; Ex. 3.
[91] Merriam–Webster Online Dictionary (2006 ed.).
[92] With regard to Ms. Bye’s testimony, the ALJ notes that it would not be inconsistent for a person to be living in more than one home at a time. For example, many persons have vacation homes and can reasonably be considered to be occupants of both.
[93] Merriam–Webster Online Dictionary (2006 ed.).
[94] See Minn. Stat. § 245C.03, subd. 1(a)(6).
[95] See Finding No. 27.
[96] See Finding No. 24.
[97] The statements from the parents that the Licensee submitted indicate that the parents knew the license was suspended, and that they had made other arrangements for day care during the suspension. See Ex. 2.
[98] Test. of Licensee.