OAH Docket No. 8-1800-17655-2

Link to Final Agency Decision

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

AND THE DEPARTMENT OF HEALTH

In the Matter of the Maltreatment Determination, Disqualification and License Revocation of Zufan Asgedom

FINDINGS OF FACT,

CONCLUSIONS AND RECOMMENDATION

This matter came on for a hearing before Administrative Law Judge Eric L. Lipman on August 14, 2007, at the Office of Administrative Hearings in Minneapolis.

Jonathan Geffen, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, Minnesota, 55101-2130, appeared on behalf of the Minnesota Department of Human Services (DHS). Jocelyn Olson, Assistant Attorney General, 445 Minnesota Street, Suite 1300, St. Paul, Minnesota, 55101-2130, made her appearance earlier on behalf of the Minnesota Department of Health (MDH) and was granted leave not to attend the hearing. Akilu Dunlap, 3033 Excelsior Boulevard, Suite 100, Minneapolis, Minnesota 55416 made an appearance by telephone on behalf of Zufan Asgedom (Respondent).

STATEMENT OF THE ISSUES

1. Whether Mr. Dunlap’s request to withdraw as counsel for Zufan Asgedom should be granted?

2. Whether the circumstances surrounding Ms. Asgedom’s extended stay in Ethiopia warrants granting the Departments’ joint motion for default?

Based upon the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On January 24, 2007, a Notice and Order for Pre-Hearing Conference (Notice and Order) in this matter was mailed to Respondent in care of her counsel, Mr. Dunlap.^{^[1]}

2. The Notice and Order alleges that:

(a) [Ms.] Asgedom provided adult foster care services to C.N., a sixty-two-year-old vulnerable adult, from June 4, 2003 through November 6, 2003. On November 6, 2003, C.N. was admitted to the hospital expressing suicidal ideations. While at the hospital, C.N. informed several hospital staff members that Asgedom recently became angry with C.N. after an episode of incontinence. C.N. alleged that Asgedom yelled at her, and then threatened to throw away C.N.’s soiled clothing. C.N. also told hospital staff that Asgedom regularly “hollers and screams” at her causing C.N. to feel scared, sick and even vomit.

(b) Asgedom signed a Key Issues For New Providers agreement on August 31, 2001, stating that if a vulnerable adult in her care damaged Asgedom’s property, she cannot receive compensation from Hennepin County. On September 5, 2003, Asgedom accused C.N. of breaking a toilet at Asgedom’s facility. Asgedom sought compensation from C.N. in the amount of $450 for damage to the toilet despite the clear language in the Key Issues For New Providers agreement precluding such recovery. With the assistance of Lisa Lange, C.N.’s Hennepin County social worker, a settlement agreement was drafted requiring C.N. to pay Asgedom $50.00 a month for the repair costs of the toilet. In discussions with her doctor and other hospital staff, C.N. consistently denied breaking the toilet.

(c) During C.N.’s stay at the hospital in November 2003, Asgedom repeatedly contacted the hospital seeking updates regarding C.N.’s medical care. The hospital staff limited Asgedom’s contact after it was alleged that Asgedom harassed hospital staff. During these communications, Asgedom offered C.N. a reduction in rent of $300 per month if C.N. would return to Asgedom’s foster care facility. Hennepin County determined that it was not in C.N.’s best interest to return to Asgedom’s care and it did not renew Asgedom’s foster care license.

(d) On August 23, 2005, Asgedom was convicted of Felony Bribery in Hennepin County. Asgedom was convicted of providing Lisa Lange, Hennepin County Social Worker, kick-backs to place patients in her care and to increase the payment amount for the vulnerable adults placed in her care. Lisa Lange also pled guilty to felony charges of bribery.^{^[2]}

3. While the Notice and Order originally set the date of the Pre-Hearing Conference for February 21, 2007, by way of a stipulation of the parties the date of the Pre-Hearing Conference was set for February 7, 2007.^{^[3]}

4. Ms. Asgedom and her counsel participated in the February 7, 2007 Pre-Hearing Conference. Because of her impending travel plans to Ethiopia, Ms. Asgedom sought, and was granted, calendaring of the close of the discovery period to coincide with her return to the United States – in May of 2007 – and an extension of the hearing date in this matter until the week beginning Monday, June 18, 2007.^{^[4]}

5. By way of a Scheduling Order of February 8, 2007, the undersigned set the close of the discovery period for Friday, May 18, 2007 with the matter proceeding to hearing on Monday, June 18, 2007.^{^[5]}

6. By May of 2007, however, Ms. Asgedom had not kept her earlier pledge to return to the United States from Ethiopia and was not in contact either with her counsel or the Office of Administrative Hearings.

7. During a telephone conference call on June 5, 2007, the parties agreed to outwardly adjust the hearing schedule approximately 60 days, to August 14, 2007, in the hopes that Ms. Asgedom might return to the United States or, at the very least, communicate with counsel as to her plans for this appeal.^{^[6]}

8. During a telephone conference call on August 1, 2007, Counsel for Ms. Asgedom noted that he had not been in contact with his client since she left for Ethiopia. Moreover, counsel had not been able to confer with Ms. Asgedom – either about the earlier extension of the hearing date or any another matter – despite vigorous and serial attempts to reach her by telephone.

9. So as to save the parties the burden and expense of a hearing which might not occur due to Ms. Asgedom’s absence, on August 1, 2007, the undersigned orally waived the requirement of the Second Scheduling Order that otherwise obliged counsel to copy, pre-file and serve hearing exhibits.^{^[7]}

10. On August 8, 2007, Counsel for Ms. Asgedom filed partial and incomplete Exhibit and Witness Lists. As Counsel explained in a transmittal letter accompanying his submissions, because Ms. Asgedom was incommunicado, he did not “have the ability to either name the additional exhibits or witnesses.”^{^[8]}

11. On the afternoon of Monday, August 13, 2007, Counsel for Ms. Asgedom filed a Motion to Withdraw pursuant to Minn. R. 1400.5700. As Counsel detailed in his motion papers:

Please accept this letter as my notice of withdrawal pursuant to Minn. R. 1400.5700. The basis of my motion to withdraw is that I am unable to locate my client. Accordingly, I am unable to represent her further in this matter. Because I do not know the reason for Zufan Asgedom’s failure to appear or contact me, I move the Court to dismiss these matters without prejudice.

Briefly, as your Honor is aware, I brought a motion on behalf of Zufan Asgedom to continue the previously scheduled hearing so that Ms. Asgedom could travel to Ethiopia and care for her ailing father. That motion was by teleconference and Ms. Asgedom was present. Your Honor granted the motion and facilitated the revised schedule. Ms. Asgedom heard and participated in the selection of dates. Thereafter, I gave a copy of these dates, including discovery deadlines and the hearing, to Ms. Asgedom. Ms. Asgedom informed me that she would return in late May or early June. On or about May 20, 2007, I attempted to contact Ms. Asgedom, but both her home and cell telephones appeared to be disconnected. Approximately one month later, Ms. Asgedom left a partial telephone message with her telephone number in Ethiopia. However, my office was unable to decipher all the numbers in her message. Consequently, our numerous efforts to contact her using that number has resulted in unsuccessful calls. To date, I have not been able to communicate with Ms. Asgedom since shortly after our telephone conference. For this reason, I am unable to continue representing her and ask to withdraw as her counsel.

12. Ms. Asgedom failed to appear at the re-scheduled hearing on August 14, 2007.

13. Appearing at the hearing by telephone, Mr. Dunlap orally renewed his request to withdraw as counsel – but only after first arguing that the appeal should be dismissed without prejudice to later refilling, if Ms. Asgedom should ever return to the United States. As of August 1, 2007, neither counsel nor the Office of Administrative Hearings knew whether Ms. Asgedom would return to the United States.

14. The motion to dismiss the appeal without prejudice to later renewal (presumably for an infinite term), was denied by the undersigned. Mr. Dunlap then renewed his request to withdraw as counsel.^{^[9]}

15. Further, as Ms. Asgedom failed to appear at the re-scheduled August 18 hearing, Counsel for DHS moved, on behalf of both Departments, for a default under Minn. R. 1400.6000.^{^[10]} The undersigned took both the motion for a default and the motion for withdrawal under advisement before closing the hearing record.^{^[11]}

16. While the motion for a disposition by default was pending, Ms. Asgedom returned to the United States and, through counsel, moved that the Court “re-set this matter for a hearing.” In an August 29, 2007 letter, Mr. Dunlap detailed:

Per my telephone call to you and both opposing counsel, Zufan Asgedom contacted me on Friday, indicating that she had just returned from Ethiopia. After I updated her on the events of the case during her absence and my struggle to contact her, she stated that she would like the Court to reconsider its decision as to the issues of default on grounds that she returned as soon as she could, given her father’s death and the need for her to stay on to assist her mother. For these reasons, Ms. Asgedom respectfully moves the Court to re-set this matter for a hearing. Should the Court grant her motion, I will again agree to assist Ms. Asgedom further in the case.^{^[12]}

17. The Departments oppose Ms. Asgedom’s motion for a third hearing date.

Based upon these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge, the Minnesota Department of Health and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50, 245A.08, 245C.27, 626.557, subd. (9d) and 626.5572, subd. (13).

2. Respondent received due, proper and timely notice of the charges against her and of the time and place of both the June 18, 2007 and the August 14, 2007 hearing. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3. Respondent is in default as a result of her failure, without the prior consent of the Administrative Law Judge, to appear at the re-scheduled hearing on August 14, 2007.

4. Pursuant to Minn. R. 1400.6000, a contested case may be decided adversely to a party that defaults. Upon default, the allegations set forth in the Notice and Order may be taken as true or deemed proved without further evidence.

5. Based upon the facts set out in the Notice and Order, Ms. Asgedom violated Minn. Stat. § 626.5572, subd. 2, by engaging in conduct that produced, or reasonably could be expected to produce, emotional distress.

6. Based upon the facts set out in the Notice and Order, Ms. Asgedom violated Minn. Stat. § 626.5572, subd. 9, through financial exploitation of a vulnerable adult.

7. Based upon the facts set out in the Notice and Order, DHS properly concluded that the alleged maltreatment constitutes “recurring” maltreatment as defined by Minn. Stat. § 245C.02, subd. 16, and thereby disqualifies Asgedom from any position allowing direct contact with persons served by DHS licensed programs.

8. Within their respective spheres, the Commissioner of Health and the Commissioner of Human Services may set aside a disqualification if the Commissioner finds that the individual does not pose a risk of harm to any person served by the facility.[13] In determining that an individual does not pose a risk of harm, the respective commissioner shall consider the nature, severity, and consequences of the event or events leading to the disqualification, whether there is more than one disqualifying event, the age and vulnerability of the victim at the time of the event, the harm suffered by the victim, the similarity between the victim and persons served by the program, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual of training and rehabilitation, and any other relevant information. In reviewing a disqualification, the Commissioners shall give “preeminent weight” to the safety of each person to be served by the facility.[14]

9. Based upon the facts set out in the Notice and Order, DHS and MDH properly concluded that Asgedom’s disqualification should not be set aside pursuant to Minn. Stat. § 245C.22, subd. 4.

10. Based upon the facts set out in the Notice and Order, MDH properly concluded that Ms. Asgedom may not work in a position allowing direct contact with or access to persons receiving services from a licensed facility.[15]

11. Pursuant to Minn. R. 9555.6125, the Commissioner of Human Services is obliged to revoke the adult foster care license of “that is not set aside under Minnesota Statutes, section 245C.22, or for which a variance has not been granted under Minnesota Statutes, section 245C.30.”[16]

12. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.

Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

Based upon these Conclusions, the Administrative Law Judge recommends that the:

(a) Commissioner of Health AFFIRM the maltreatment determination and the denial of the Licensee’s request for a set-aside;

(b) Commissioner of Human Services AFFIRM the determination of the Licensee’s disqualification and the denial of the Licensee’s request for a set-aside;

(c) Commissioners deem Mr. Dunlap’s request to withdraw as counsel for Ms. Asgedom, as itself WITHDRAWN, by his letter of August 29, 2007.

Dated: October 1, 2007

s/Eric L. Lipman

ERIC L. LIPMAN

Administrative Law Judge

Reported: February 7, 2007 Pre-Hearing Conference, recorded (1 cassette)

August 14, 2007 Hearing, digitally recorded (1 audio file)

No transcript prepared

NOTICE

The report in this consolidated case is a recommendation, not a final decision. The Commissioner of Health will make the final decision as to propriety of the maltreatment determination and whether the Licensee’s disqualification should be set aside, after a review of the record. Similarly, the Commissioner of Human Services will make the final decision as to the propriety of the disqualification from direct contact services, and the revocation of the adult foster care license, after a review of the record. The Commissioners may adopt, reject, or modify these Findings of Fact, Conclusions, and Recommendations.

Under Minn. Stat. § 14.61, the final decisions of the respective 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 Commissioners.

Parties wishing to address the propriety of the maltreatment determination and the Licensee’s request for a set aside of her disqualification, should contact Sanne Magnan, Commissioner, Minnesota Department of Health, 85 East Seventh Place, Suite 400, P.O. Box 64882, St. Paul, MN 55101, to learn the procedure for filing exceptions or presenting argument.

Parties wishing to address the propriety of disqualifying the Licensee from direct contact services, and the revocation of her adult foster care license, should contact Cal Ludeman, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155 to learn the procedure for filing exceptions or presenting argument.

If either Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final decision of that agency 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 Commissioners, or upon expiration of the deadline for doing so. The Commissioners 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 Commissioners are required to serve their final decisions upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

MEMORANDUM

Minn. R. 1400.6000 provides for the disposition of contested cases when a party fails to appear at a hearing on the merits. The rule states:

The agency or the judge, where authorized, may dispose of a contested case adverse to a party which defaults. Upon default, the allegations of or the issues set out in the notice of and order for hearing or other pleading may be taken as true or deemed proved without further evidence. A default occurs when a party fails to appear without the prior consent of the judge at a prehearing conference, settlement conference, or a hearing or fails to comply with any interlocutory orders of the judge.

Further, the case law relating to litigants who default on the day of hearing is divided into two categories. The law separates, for differing results, those litigants whose lapses in attention result from “excusable neglect,” from those whose refusal to appear is intentional or deliberate.

For the first category of litigants – the well-motivated but momentarily inattentive – the law permits a reprieve from the entry of a judgment of default. Under Minn. R. Civ. P. 60.02 (a), a rule that this Office may look to guide our own decision-making,[17] the district courts are authorized to relive a party from an earlier judgment of default where there has been a “[m]istake, inadvertence, surprise, or excusable neglect.” While the right to be relieved from the consequences of a default judgment is not absolute, the state courts instruct that “[r]elief should be granted liberally so as to permit determination of the controversy upon the merits.”[18] In cases where the lapse in attention was not deliberate, these courts apply a four-factor balancing test in order to assess whether relief should be granted.[19]

For second category of litigants, however – those for whom the nonappearance was intentional – the state courts provide no relief.[20]

Against this background, Ms. Asgedom’s request for a third hearing date comes for a decision. In the view of the Administrative Law Judge, had Ms. Asgedom contacted her counsel on or near the originally scheduled June 18, 2007 hearing, the request for relief would have a very different posture. Generously, with flexibility, and without assurance that she would ever return to the United States, both Departments and this Office agreed to extend the original hearing date (that Ms. Asgedom helped to select) by eight weeks.

During none of those eight weeks, however, did Ms. Asgedom contact her counsel or OAH; nor does she claim that she was impeded in any way from communicating with those who are here in the United States.[21] Apparently, on her own, Ms. Asgedom made the decision that her activities in Ethiopia required all of her attention, and the proceedings in this docket deserved none. The default rules cannot abide this conduct and still retain meaning for any other litigant.

Under the special facts of this case, Ms. Asgedom is not entitled to the scheduling of a third evidentiary hearing, and the facts alleged in the Notice and Order should be “deemed proved without further evidence.”

E.L.L.

[1] See, Certificate of Service of Jenifer S. Pruden (January 27, 2007).

[3] See, Scheduling Letter (January 31, 2007).

[4] Hearing Recording, Pre-Hearing Conference, OAH Docket No. 8-1800-17655-2 (February 7, 2007).

[5] See, Scheduling Order, OAH Docket No. 8-1800-17655-2 (February 8, 2007).

[6] See, Second Scheduling Order, OAH Docket No. 8-1800-17655-2 (June 14, 2007); Letter from Jonathan Geffen (June 7, 2007).

[7] Compare, Second Scheduling Order, OAH Docket No. 8-1800-17655-2 (June 14, 2007) with Letter from Jocelyn Olson (August 1, 2007) and Letter from Jonathan Geffen (August 3, 2007).

[8] See, Letter from Akilu Dunlap (August 8, 2007).

[9] See, Digital Recording, OAH Docket No. 8-1800-17655-2 (August 14, 2007).

[12] See, Letter from Akilu Dunlap (August 29, 2007)(emphasis added).

[13] See, Minn. Stat. § 245C.22 (4) (2006).

[14] See, Minn. Stat. § 245C.22 (3) (2006).

[15] Compare, Minn. Stat. § 245C.04 (2) (2006).

[16] See, Minn. R. 9555.6125 (4) (D) (2006).

[18] See, e.g., Croes v. Handlos, 30 N.W.2d 471, 472 (Minn. 1948); Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App.) review denied (Minn. 1994).

[19] A party seeking to open a default judgment must establish that: (a) the party has a reasonable defense on the merits, (b) the party has a reasonable excuse for his failure or neglect to answer, (c) the party has acted with due diligence after notice of the entry of judgment, and (d) no substantial prejudice will result to the other parties. See, Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980); Hill v. Tischer, 385 N.W.2d 329, 331 (Minn. App. 1986).

[20] See, e.g Elk River Enter. Inc. v. Bivens Winchester Corp., 357 N.W.2d 139, 140 (Minn. App. 1984) (citing Croes v. Handlos, 30 N.W.2d 471, 472 (Minn. 1948)).

[21] Indeed, the U.S. Embassy in Addas Ababa, Ethiopia notes on its website that “Registered mail may be sent through the Ethiopian postal service and return receipts obtained. Various ‘rapid mail’ services such as DHL, TNT and Federal Express are also available locally.” See, (http://ethiopia.usembassy.gov/attorney_information.html).