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OAH 7-1800-17582-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of the Application of Kathleen Sanders for a License to Provide Foster Care |
RECOMMENDATIONS ON MOTION FOR SUMMARY DISPOSITION |
This matter is before Administrative Law Judge Richard C. Luis on the Local Agency/Department’s Motion for Summary Disposition. The motion record closed at the conclusion of the Oral Argument on December 6, 2006.
Francine P. Mocchi, Assistant Anoka County Attorney,
Kathleen Sanders (“Applicant”)
Based on the files and proceedings herein, and for reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the Local Agency/Department’s Motion for Summary Disposition be GRANTED because no genuine issues of material fact are present in the record; and
IT IS RECOMMENDED FURTHER that the Commissioner of Human Services DENY the Family Foster Care License Application of Kathleen Sanders.
Dated this _27th_ day of December, 2006.
_/s/
Richard C. Luis_________
RICHARD
C. LUIS
Administrative
Law Judge
Reported: Taped
Kathleen Sanders has applied for a
family foster care license in order to provide foster care for her niece, A.V.,
until A.V. graduates from high school, which is scheduled to occur in June,
2007. Ms. Sanders was granted an
emergency foster care license through the offices of the Hennepin County Human
Services and Public Health Department for the period September, 2005 through
December 31, 2005. After that time, she
applied for a foster care license through the Anoka County Human Services
Department (
The application was denied because of
a disqualification of the Applicant’s son, N.S., who was convicted on April 7,
1997 of the crime of Second Degree Assault, a felony under Minn. Stat. § 609.222. That conviction is the basis of a permanent
disqualification pursuant to Minn. Stat. § 245C.15, subd. 1. Under
The Applicant does not challenge the fact of the existence of a conviction against her son for the felony of Second Degree Assault in violation of Minn. Stat. § 609.222. That crime is one of a number that carry the consequence of a permanent disqualification under Minn. Stat. § 245C.15, subd. 1. By operation of Minn. Stat. § 245C.24, subd. 2, the Commissioner has no authority to set aside that disqualification, in so far as it affects Ms. Sanders, so long as N.S. continues to live in her residence.
Nor is relief available to the
Applicant by way of variance.
Except for any disqualification under § 245C.15, subdivision 1, when the Commissioner has not set aside a background study subject’s disqualification and there are conditions under which the disqualified individual may provide direct contact services or have access to people receiving services that minimize the risk of harm to people receiving services, the commissioner may grant a time-limited variance to a license holder. [Emphasis added]
Unfortunately
for the Applicant, the disqualification against her son is one falling within
the exception specified in the above-quoted statute. That is, N.S. has been disqualified under Minn. Stat. § 245C.15, subd. 1, so no
possibility exists in this case to grant a variance.
Summary disposition is
appropriate where there is no genuine issue as to any material fact and one
party is entitled to judgment as a matter of law.[1] The Office of Administrative Hearings has
generally followed the summary judgment standards developed in judicial courts
in considering motions for summary disposition regarding contested case
matters.[2] A genuine issue is one that is not sham or
frivolous. A material fact is a fact
whose resolution will affect the result or outcome of the case.[3]
The
moving party, the Department, has the initial burden of showing the absence of
a genuine issue concerning any material fact.
To successfully resist a motion for summary judgment, the non-moving
party must show that there are specific facts in dispute that have a bearing on
the outcome of the case.[4] The nonmoving party must establish the existence
of a genuine issue of material fact by substantial evidence; general averments
are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P.
56.05.[5] The evidence presented to defeat a summary
judgment motion, however, need not be in a form that would be admissible at
trial.[6]
When
considering a motion for summary judgment, the Court must view the facts in the
light most favorable to the non-moving party.[7] All doubts and factual inferences must be
resolved against the moving party.[8] If reasonable minds could differ as to the
import of the evidence, judgment as a matter of law should not be granted.[9]
The
scope of this proceeding is limited to any challenge to the correctness of the
disqualification determination, and since neither the Applicant nor N.S. has
challenged the correctness of the conviction for which the disqualification in
this case is imposed, the permanent disqualification for the Second Degree
Assault conviction renders the disqualification determination conclusive and it
is appropriate to grant the Motion for Summary Disposition.
If
the Commissioner could set aside the disqualification on a finding that the
individual (N.S.) has submitted sufficient information to demonstrate that he
no longer poses a risk of harm to any person served in his mother’s foster care
home, a set aside or variance might be available pursuant to Minn. Stat. §
245C.22, subd. 4. That statute provides
that a decision to grant a variance or set aside a disqualification can be
granted if the individual has demonstrated that they do not pose a risk of
harm. In deciding whether a risk of harm
exists, the Commissioner shall consider such factors as the nature, severity
and consequences of the event that led to the disqualification, whether more
than one disqualifying event exists, the age and vulnerability of the
victim(s), the harm suffered by the victim(s) and, the similarity between the
victim(s) and person served by the program, the amount of time elapsed without
repeat of the same or similar event, the documentation of successful completion
by the person disqualified of training or rehabilitation pertinent to the
event, and any other relevant information.
Unfortunately, the risk of harm factors listed herein do not apply when
the basis for the disqualification, which cannot be set aside or from which a
variance cannot be granted, stand as a permanent bar. In this case, the permanent bar is imposed by
Minn. Stat. § 245C.24, subd. 2, as noted above.
It
appears from the arguments made at the Motion Conference on December 6, 2006
that imposition of the permanent bar in this case leads to a harsh result. If the Applicant is not granted a license for
foster care, she will not be able to support her niece’s continuing to live in
her home. A.V. may have to move out of
the Applicant’s house, and be returned to her mother, which would require
moving back into a different school district, which could jeopardize her
chances to graduate from high school in the spring. On the other hand, the Applicant’s plans to
continue having her son, N.S., reside in her house. Due to that situation, there is no
alternative except to apply the law in this case. The statute which imposes the permanent bar
and does not allow for the granting of a variance in this case errs on the side
of protecting children. In this case, it
likely will operate to remove A.V. from the same house where her cousin
resides, because of the fact that her cousin has been convicted of assaulting
another person with a dangerous weapon (a knife). Because the conviction of her cousin for that
assault has not been challenged, it is appropriate to impose the permanent bar
and grant the Local Agency/Department’s Motion for Summary Disposition.
R. C. L.
[1] Sauter v. Sauter, 70 N.W.2d 351, 353 (
[2] See
[3] Illinois Farmers Insurance Co. v. Tapemark
Co., 273 N.W.2d 630, 634 (
[4] Thiele v. Stich, 425 N.W.2d 580, 583 (
[5] Id; Murphy v. Country House, Inc., 307
[6] Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477
[7] Ostendorf v. Kenyon, 347 N.W.2d 834 (
[8] See, e.g., Celotex, 477
[9]