|
|
|
|
|
3-1800-17940-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In
the Matter of the Appeal of the Revocation of the Child Foster Care License
of Jannette Sullivan-Kucera |
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
This
matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy
on September 14, 2007, at the Municipal Council Chambers,
Cara M. Hawkinson,
Assistant Attorney General,
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 (2006), 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 Cal
Ludeman, 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 (2006). In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed. 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
Should the Licensee’s child foster care license be revoked because a member of her household is disqualified?
The Administrative Law Judge concludes that the license should not be revoked because the disqualified individual no longer lives with the Licensee.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Jannette Sullivan-Kucera has been a licensed
provider of child foster care in
2.
Michael Beitel was a foster child in the
Licensee’s home for three periods of time between 1991 and 1994, when he turned
18. In 1994 he moved to
3.
Beitel is now 31 years of age. He is employed by the Jamar Company, located
in
4.
In 2004, as part of the ongoing licensing
process,
5.
Beitel has no other permanent address. He owns a trailer and a 40-foot houseboat,
which is docked on
6. Based upon the results of the background study, Beitel was found to be disqualified from direct contact with persons served by DHS-licensed programs due to a 1999 misdemeanor fifth degree assault conviction.[8] On May 3, 2004, however, the Department granted the Licensee a variance so that she could continue to operate her foster care home while Beitel lived with her.[9]
7. In early 2005, the Licensee applied for an adult foster care license. The County conducted another background study in connection with the application for an adult foster care license, and again found Beitel to be disqualified. The County initially recommended that the disqualification be set aside.[10] While the application was pending, the County placed a vulnerable adult, R.G., in the Licensee’s home.[11]
8.
In July 2005, Beitel was working in
9. Based on this incident, the County recommended that no variance or set-aside of his prior disqualification be granted in connection with either the child foster care license or the application for an adult foster care license.[15]
10. On June 12, 2006, the Department determined that Beitel committed serious maltreatment of R.G. and disqualified him for seven years from any position allowing direct contact with or access to persons served by DHS-licensed programs.[16] The Licensee was also ordered to remove Beitel from any position allowing direct contact with or access to persons receiving services.[17] On June 20, 2006, Beitel requested reconsideration of his disqualification.[18]
11. No foster children have been placed in the Licensee’s home since mid-June 2006.
12. On November 14, 2006, the Department affirmed the maltreatment determination and found sufficient evidence that the maltreatment was serious.[19] The Department also found that the decision to disqualify Beitel was correct, and that Beitel’s disqualification should not be set aside because he poses a risk of harm to persons served by licensed programs.[20] The Department declined to grant the Licensee a variance to allow Beitel to live in her household.[21]
13. On the same date, November 14, 2006, the Commissioner issued an order revoking the Licensee’s child foster care license and denying her application for an adult foster care license because a disqualified person remained a member of her household.[22]
14. On November 22, 2006, the Licensee requested a consolidated hearing of the revocation and disqualification issues.[23] The Commissioner subsequently issued a Notice and Order for Hearing that identified as issues for hearing (1) the revocation of the child foster care license; (2) the denial of the adult foster care license application; and (3) the maltreatment determination and disqualification of Michael Beitel.[24] The Licensee clarified at the commencement of the hearing that she was appealing only the revocation of her child foster care license, not the denial of the application for an adult foster care license.[25]
15.
On May 21, 2007, Beitel notified the Department
of the withdrawal of his appeal of the maltreatment determination and
disqualification. He provided the
Department with a change of address form that he completed for a new driver’s
license.[26] The new address listed was the
16. Since moving out of the Licensee’s home in May 2007, Beitel has stayed overnight there between one and three times per month.[29]
17.
On July
24, 2007, Patricia Afwerke, a Department licensing worker, traveled to the
Licensee’s home to conduct an unannounced inspection. Afwerke arrived at the Licensee’s home at
about 7:55 a.m. The Licensee met Afwerke
at the door but refused, on the advice of her lawyer, to allow Afwerke access
to inspect the inside of her home. Michael
Beitel was not there, nor were any vehicles belonging to him parked at the
residence.[30] At that time, Beitel was living in
18.
On
September 13, 2007, the day before the hearing, Sullivan-Kucera sold her
home. She had signed a purchase
agreement to buy a new home near
19.
At the time of the hearing, Beitel had moved his
trailer to
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 and 245A.08. This is a consolidated hearing concerning the disqualification and order of revocation pursuant to Minn. Stat. § 245A.08, subd. 2a (2006).
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 Commissioner may demonstrate reasonable cause for action taken by submitting statements, reports, or affidavits to substantiate the allegations that the license holder failed to comply fully with applicable law or rule. If the Commissioner demonstrates that reasonable cause existed, the burden of proof shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules that the commissioner alleges the license holder violated, at the time that the commissioner alleges the violations of law or rules occurred.[34]
5. The Commissioner may suspend or revoke a license 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.[35]
6. When applying sanctions 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.[36]
7. The Commissioner demonstrated reasonable grounds to revoke the child foster care license because a disqualified person was living in the household at the time of the revocation order. The Licensee, however, has proved by a preponderance of the evidence that the disqualified individual no longer lives in her home.
8. 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:
IT IS HEREBY RECOMMENDED: That the Commissioner rescind the revocation of the child foster care license.
Dated: October 24, 2007.
|
s/Kathleen
D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
No one contends that
the Licensee has violated any statute or rule that justifies revocation of her
license to provide foster care. The
evidence is undisputed that she is a long-term foster care provider with no
history of any adverse licensing action and that she is generally well-regarded
by social workers within
The Licensee testified that Beitel has never had a key to her home or paid rent or any portion of her household expenses. He used her address on his driver’s license and to receive mail, and he kept belongings there.[37] Although he did not live there continuously, he was there often enough that the County properly concluded a background study was merited because he would have unsupervised access to persons served by the program. The Licensee further testified that in May 2007, she told Beitel he could no longer use her address on his driver’s license or receive mail there, and he has moved all of his possessions out of her home. Finally, she testified that she will not permit him to be present in the home if foster children are living there. She described him as a self-sufficient person who does not need her residence. She said he is willing and able to live in his trailer, on his houseboat, or in his hunting shack, as he sees fit.[38]
The Department contends there is insufficient evidence to conclude Beitel no longer lives in the Licensee’s home. It contends that there must be evidence, above and beyond the Licensee’s testimony, such as a lease, purchase agreement, or utility bill with Beitel’s name on it, showing a different permanent address. The Department further contends that the Licensee’s testimony that she would not permit him to be present in the home if foster children were present is not credible, because the Licensee has sustained “a close intimate relationship [with Beitel] for nearly eighteen years.” In addition, the Department maintains Sullivan-Kucera was not credible because she failed to disclose to the Department that she was moving, and because she refused to permit a licensing worker to conduct an unannounced inspection of her home. Finally, the Department maintains the Licensee’s testimony about the nature of her relationship with Beitel was evasive.
The Administrative Law Judge agrees that a requirement to produce a lease, purchase agreement, or utility bill with the disqualified person’s name on it might be reasonable under other circumstances; here, however, it is not. The Licensee cannot require Beitel to rent or buy a home that he would rarely use, given the itinerant nature of his employment. She has no control over his use of utilities. In short, it is not within her power to produce the proof demanded by the Department. The ALJ disagrees that, without this evidence, the Licensee cannot establish that she is in compliance with the statute.
What the Licensee did provide was credible and convincing testimony that being a foster care provider was important to her and that it has been the most rewarding work she has ever done. She is fully aware that she cannot permit Beitel to have access to foster children in her home. She required him to move his possessions out of her home and to stop using her address, and she testified that providing foster care is so important to her that she would preclude him from visiting her home if foster children were present in order to comply with this requirement.
Although the Department argues the relationship between the Licensee and Beitel has been “close and intimate” for more than 18 years, and nothing has changed since he first began living with her, the record does not support this characterization. The record reflects that the current relationship is neither as intimate nor long-term as the Department contends. Beitel has been an occasional resident of the Licensee’s home since 2004, has not participated financially in supporting her household, and has never had a key to her home. He has no claim of ownership or financial interest in her home. Furthermore, the Licensee testified under oath that he no longer lives with her. The ALJ has accepted this testimony because the Licensee was straightforward in describing the limited nature of this relationship. It appears she has controlled Beitel’s access to her home in the past, and she seemed certain that she could do so in the future.
It would have been prudent for the Licensee to allow the licensing worker to enter her home in July, particularly since she has provided persuasive evidence that Beitel was not there.[39] Her attorney, however, advised her not to do so. And there is nothing intrinsically untrustworthy about the Licensee’s decision to sell her home without notifying the Department. She had no children in care, and the closing took place the day before the hearing. There was no delay to speak of in announcing this change. She obviously would not be able to provide foster care until she has a new home that has been inspected and found to be suitable, but the ALJ does not believe these decisions so adversely affect the Licensee’s credibility that her testimony about Beitel’s residence cannot be believed.
The Licensee has a lengthy history of compliance with licensing obligations, and she is not now accused of violating any statute or rule. She has committed to future compliance, and she appears to have the full trust of local social workers who have placed children with her in the past, including the social worker who recommended that the variance be rescinded. Based on the record as a whole, the Licensee has proved by a preponderance of the evidence that Beitel does not live with her any longer. Her commitments to preclude future contact between Beitel and foster children can be enforced through appropriate conditions placed on the license. The Administrative Law Judge does not believe that revocation of the license, on this record, would comport with Minn. Stat. § 245A.07, subd. 1 (2006).
K.D.S.
[1] Testimony of RaNae Whitbeck; Testimony of Laurie Youso; Testimony of Jean Anderson; Affidavit of Connie Kalar.
[2] Testimony of Jannette Sullivan-Kucera.
[3] Ex. 16 (Affidavit of Michael Beitel); Ex. 3.
[4] Exs. 3 and 5.
[5] Ex. 3.
[6] Testimony of Jannette Sullivan-Kucera.
[7] Test. of J. Sullivan-Kucera.
[8] Exs. 3 and 5.
[9] Ex. 5.
[10] Ex. 6.
[11] Ex. 2.
[12] Exs. 2 and 8.
[13] Ex. 8.
[14] Ex. 2.
[15] Ex. 7.
[16] Ex. 9.
[17]
[18] Ex. 4.
[19] Ex. 10.
[20]
[21]
[22] Ex. 1.
[23] Ex. 11.
[24] Notice and Order for Hearing (March 23, 2007).
[25] The caption in this matter has been revised to reflect this change in the scope of the hearing.
[26] Ex. 12.
[27]
[28] Ex. 16.
[29] Test. of J. Sullivan-Kucera.
[30] Exs. 17 & 18; Test. of J. Sullivan-Kucera.
[31]
[32] Test. of J. Sullivan-Kucera.
[33]
[34]
[35]
[36]
[37] Test. of J. Sullivan-Kucera.
[38]
[39] Exs. 16-18.