OAH 2-1800-19000-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Maltreatment Determination, Temporary Immediate
Suspension and Revocation of the License of Lori Schiller |
FINDINGS OF FACT, CONCLUSIONS, AND
RECOMMENDATION |
This matter comes before
Administrative Law Judge (ALJ) Raymond R. Krause following a hearing pursuant
to an appeal by Lori Schiller (Licensee) from Orders Determining Maltreatment
by Licensee, imposing a Temporary Immediate Suspension (TIS) of her family daycare
license and revoking her family daycare license. The hearing in this matter was held on
February 20, 2008, at the Watonwan County Human Services office in
Both the county attorney and the
attorney for the Licensee submitted proposed Findings of Fact, Conclusions of
Law and Recommendations at their own request.
The parties’ Findings were received by the Office of Administrative
Hearings on March 17, 2008, and the record closed on that date.
LaMar Piper, Watonwan County
Attorney, appeared on behalf of Watonwan County Human Services and the Minnesota
Department of Human Services (County and Department). Daniel A. Birkholz, Birkholz Law, LLC,
appeared on behalf of the Licensee.
STATEMENT
OF ISSUES
1. Did the Department
demonstrate by a preponderance of the evidence that Licensee’s actions or
failure to comply with applicable law or rule constitute serious or recurring
maltreatment, therefore justifying a determination of maltreatment and
disqualification?[1]
2. Did the Department demonstrate that reasonable cause exists to
believe that Licensee’s actions or failure to comply with applicable law or
rule poses an imminent risk of harm to the health, safety or rights of persons
served by her daycare program, thereby justifying the continuation of the Order
of Temporary Immediate Suspension[2]?
3. Did the Department demonstrate that reasonable cause exists to
revoke Licensee’s child care license based on her failure to comply with
licensing laws and rules?[3]
The ALJ finds that the Department did not
meet its burden of proof with regard to the determination of maltreatment or
continuation of the Temporary Immediate Suspension. The Department did, however, meet its burden
with regard to the order of revocation.
Based on the hearing record, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
PROCEDURAL HISTORY
1.
On
November 1, 2006, Watonwan County Human Services notified Licensee that it had
determined that Licensee had abused children attending her child care program
and that she was disqualified from “direct contact with, or access to, persons
receiving services from the licensed program.”
Because of the determination that she posed “a risk of harm to persons
served by the program” she was “required to be within the sight or hearing of
another adult caregiver.”[4]
2.
The
November 1, 2006 letter notifying Licensee of the results of the maltreatment
investigation stated:
The reasons for the determinations are that
multiple interviews with children in the daycare were completed, with the
children reporting that you used corporal punishment, such as hitting children
with a remote control, hitting children with a wooden spoon, hitting children
with a measuring stick, and taping a child’s mouth shut.[5]
3.
4.
In a
letter dated November 21, 2006,
5.
In a
letter dated December 6, 2006, Licensee, through her attorney, sent a Notice of
Appeal of the abuse determination and the disqualification to the Department.[8]
6.
The
Department notified Licensee that it was revoking her license to provide family
child care in a letter dated April 24, 2007.
The decision to revoke was made on a recommendation from Watonwan County
Human Services.[9]
7.
The April
24, 2007 Order of Revocation stated that, in addition to the findings of
physical abuse and the resulting disqualification, Licensee’s license was being
revoked because the following were licensing violations related to
inappropriate behavior guidance:
·
You
spanked children in your care
·
You hit
a child in his/her head with a remote control
·
You hit
a child with a wooden spoon
·
You hit
a child with a measuring stick
·
You
taped a child’s mouth shut
·
You
took food out of the garbage and forced a child to eat the food
·
You
lifted a child by his/her arm and put them on the couch[10]
8.
On or
about May 7, 2007, Licensee, through her attorney, notified the Department that
she was appealing the Order for Revocation.[11]
9.
On May
10, 2007, the Department consolidated the fair hearing scheduled for the abuse
and disqualification actions with the appeal of the revocation into a single
contested case proceeding.[12]
10.
On July
23, 2007, while the contested case proceeding was pending, the Department
issued an Order of Temporary Immediate Suspension (TIS) based on a report
received by Watonwan County Human Services on July 16, 2007, regarding Licensee’s
child care program.[13]
11.
In its
August 7, 2007, Notice of and Order for Hearing regarding the Licensee’s appeal
of the TIS, the Department listed the following issues to be considered:
12.
On July
31, 2007, Laura Plummer Zrust, Manager of the Department’s Licensing Division,
signed a Notice of and Order for Hearing in the appeal of the Temporary
Immediate Suspension of Licensee’s license.[15]
13.
Following
several continuances requested by the parties, the hearing in this matter was
held on February 20, 2008.
BACKGROUND
14.
Licensee
has been licensed to operate a family child care in her home continuously since
the early 1980’s.[16]
15.
At all
times relevant to this proceeding, Licensee was licensed though
16.
Licensee’s
license allows her to care for up to 14 children with an adult helper.[18]
17.
Licensee’s
child care program accepts children beginning at approximately 5:15 a.m. each
day.[19]
18.
Licensee
offers breakfast at 7:30 a.m. to those children who wish to eat breakfast at
her home.[20]
19.
Licensee
serves lunch to children in her care between about 11 a.m. and noon, with
the younger children eating first.[21]
20.
Licensee
provides drinks of water to children requesting them from time to time during
the day, but will refuse a child asking repeatedly for water if he or she has
just had a drink, in order to avoid an in-and-out pattern of traffic.[22]
21.
Licensee
has regular snack times during the day during which children in care are
provided with snacks.[23]
22.
Licensee
has participated for about 20 years in Provider’s Choice, Inc., a state-supported
food program. A Provider’s Choice staff
person performs unannounced drop-in visits three times each year, in addition
to an annual visit to review Licensee’s documentation for the program. Licensee has never been found to be in
violation of any requirements of the Provider’s Choice program.[24]
23.
Licensee
has times during the day when younger children are napping that she requires
the older children in care to engage in quiet activities such as reading or
watching television if they are not outside.[25]
24.
Licensee’s
deck is designed and constructed to be safe for small children. Often the small children will play outside on
the deck supervised by an adult while the older children play in the yard
below, where they are within view and supervised by a second adult or a helper.[26]
FINDINGS
OF MALTREATMENT; DISQUALIFICATION; AND REVOCATION OF CHILD CARE LICENSE
25.
On
September 16, 2006,
26.
Stordalen
worked with
27.
Ms.
Stordalen and/or Deanna Louris, the Watonwan child protection worker assigned
to investigate the complaints, spoke to at least nine families. Statements by family members in six of those
families did not raise concerns about maltreatment.[29]
28.
The
findings of maltreatment based on corporal punishment rested primarily on the
statements of four children, M.T., L.G., E.G. and P.R. [30]
29.
M.T.
was a third grader in the fall of 2006.
In June of 2006, when the child care provider whose program he and his
brothers usually attended was unavailable for several days, they were scheduled
to attend Licensee’s daycare program.[31]
30.
On the
second day that M.T. and his brothers attended Licensee’s daycare in June of
2006, M.T. did not want to eat all of the pork chop that Licensee had served him. M.T. put his disposable lunch plate with the
uneaten food either on the counter next to, or directly on top of, the kitchen
trash. When Licensee saw the plate with
the uneaten food, she called M.T. back to the table, put the plate on the table
in front of M.T. and instructed M.T. to eat the food.[32]
31.
M.T.
sat in front of the uneaten food for a time but ate little, if any, of the rest
of the food.[33]
32.
On the
same day, after lunch, Licensee picked up A.T., M.T.’s 3-year-old brother, who
had been crying, spanked him and put him onto the deck overlooking the backyard. M.T. was outside playing in the backyard at
the time.[34]
33.
When
M.T.’s mother arrived to pick up her children at about 1:15 p.m. that day,
A.T. was in the kitchen. Licensee told
her that A.T. had been crying a lot that day and about M.T. wasting his
food. Licensee was clearly upset, as was
M.T.[35]
34.
M.T.
and his brothers did not return to Licensee’s daycare after that day.[36]
35.
M.T.’s
mother did not report her concerns about Licensee’s daycare at the time. Several months later M.T. expressed concerns
about what rules would apply at his new daycare with regard to finishing all of
his food. M.T.’s mother decided, at that
point, that he was seriously bothered by the incident and that it was important
to report to county authorities the incidents about the pork chop and Licensee
spanking A.T. and putting him outside on the deck. [37]
36.
In the
course of interviewing families in response to the complaints from M.T. and his
mother, Ms. Stordalen and Ms. Louris became aware of other concerns about Licensee’s
treatment of children in her care.[38]
37.
Licensee
asked children attending her daycare to perform various household chores,
including scrubbing walls made dirty by the children, making beds, vacuuming,
dusting, taking out the trash and cleaning and vacuuming Licensee’s family’s
camper.[39]
38.
Children
were asked to help awaken napping babies and to help change their wet diapers.[40]
39.
Some of
the children did the chores because they wanted to.[41]
40.
Other
children felt that they did not have a choice to say “no” when Licensee asked
them to do the chores.[42]
41.
Licensee
used corporal punishment in the following instances:
a) E.G., who stopped
attending Licensee’s daycare in the summer of 2006, saw her spank children with
her hand. Sometimes a child would cry
when spanked.[43]
b) Licensee hit E.G. on the
head with the remote once and E.G. saw Licensee hit lightly or tap other
children with the remote.[44]
c) E.G.’s youngest brother,
who was almost four in the summer of 2006, was crying and Licensee picked him
up by his arm and put him on the couch.[45]
d) Licensee hit L.G. with her
hand and sometimes with a fly-swatter.
L.G. who was 8 years old in the summer of 2006, did not cry when Licensee
hit him because it was not that painful.[46]
e) L.G. saw Licensee hit or
tap some of the children with the television remote control.[47]
f) Licensee pulled L.G.’s
ear approximately five times during the years he attended her child care.
42.
P.R.
stated to County child protection workers in 2006 that she saw Licensee hit
children with a measuring stick. During
the hearing, P.R. denied that she saw Licensee using a measuring stick to hit
children.[48]
43.
The
only evidence that Licensee hit a child with a wooden spoon was J.M.’s
statement made during an interview in July, 2007.[49]
44.
J.R. worked
during the summers of 2006 and 2007 as Licensee’s helper. She was 14 in the summer of 2007. When she was younger, she attended Licensee’s
daycare for about five years.[50]
45.
J.R.
has seen Licensee tap children lightly, mostly to get their attention, but not
spank them or hit them hard. She has not
seen Licensee use a ruler to hit a child.
She may have seen Licensee tap a child while holding the remote, but
does not believe that Licensee actually hit a child with the remote.[51]
46.
A
number of witnesses have never seen Licensee spank or hit a child, including
Kathleen Thornblad, S.E., Lisa Beilke, Sarah Schiller and Kathleen
Phiesse. Lisa Beilke, Sarah Schiller and
Kathleen Phiesse have all worked at Licensee’s daycare.[52]
TEMPORARY
IMMEDIATE SUSPENSION
47.
On the morning
of July 17, 2007, J.A.’s mother dropped his younger sister off at Licensee’s
daycare. She told Licensee that J.A.’s
father was taking J.A. to his morning swimming lesson and asked whether Licensee
could pick J.A. up at 9:30 when the swimming lesson was over.[53]
48.
Licensee
told J.A.’s mother that Licensee’s helper could pick up J.A. and then take him
to t-ball practice at 10:30 a.m.[54]
49.
Soon
after, J.A.’s father stopped by Licensee’s home to drop off J.A.’s shorts and
glove. He, too, asked about Licensee picking
up J.A. at 9:30 and then delivering him to t-ball at 10:30. Again, Licensee said her helper could do
that.[55]
50.
J.A.’s
mother understood from what Licensee had told her that Lisa Beilke, her second
adult helper, was the person who walked J.A. to and from his lessons.[56]
51.
Licensee
telephoned her 14-year-old helper, J.R., to ask her to pick up J.A. after his
swimming lesson. No one answered the
phone at J.R.’s home, so Licensee left J.R. a message on the answering machine.[57]
52.
Licensee
did not have a backup plan in mind if she did not hear back from J.R. She did not recall that J.R. was not working
that day and assumed that J.R. would get the message and pick up J.A[58].
53.
J.R., Licensee’s
14-year-old helper, had told Licensee the week before this incident that she
would not be able to work on July 17 because she had to stay at home to care
for her own siblings.[59]
54.
J.R.
was at the high school during the swimming lessons that ended at 9:30 observing
her own siblings. She did see J.A. in
the same class and she saw J.A.’s father, observing him.[60]
55.
J.R.
left the swimming lessons quickly as they ended because she had to get to her
tennis practice, but had to stop at home to pick up her water bottle, which she
had forgotten.[61]
56.
Her
stepfather drove J.R., along with her younger siblings, to her home. She ran into the house to get the water
bottle while her stepfather and siblings waited in his truck.[62]
57.
While
J.R. was in the house, she noticed that there was a message on the answering
machine. She listened to the message,
which was from Licensee, asking her to pick up J.A. after his swimming lesson
and to bring him to Licensee’s home.[63]
58.
J.R.
noticed that it was 9:48 a.m. when she got the message and immediately called Licensee. Licensee did not answer the phone, so J.R.
left a message on Licensee’s voice mail saying that she had tennis lessons.[64]
59.
Licensee
did not hear the phone ring when J.R. called to say she had tennis
lessons. Some time after J.R. left the
message, Licensee noticed her message light blinking on her phone and listened
to the message.[65]
60.
At
about 10:00 a.m. on July 17, 2007, St. James Police Officer Rick Eisfeld was
called to
61.
Mr.
Firchau stopped when he saw the child who was in the middle of the road and
close to the railroad tracks that intersect
62.
Mr.
Firchau had a radio in his truck. He
brought J.A. to his truck and radioed the police department, keeping the boy in
the truck until the police arrived.[68]
63.
Officer
Eisfeld arrived and spoke to J.A., who was somewhat difficult to
understand. J.A. said he wanted to go
home, but he did not know his address.
Officer Eisfeld did not know J.A., or recognize his last name. He determined that someone the boy knew was
at the high school, so he took the boy there.
People at the high school pool identified J.A. and were able to contact
his mother via cell phone. Officer
Eisfeld understood that J.A. was supposed to have gone to Licensee’s house, but
that he did not want to go there.
Someone waited with J.A. until his mother arrived to get him. Officer Eisfeld spoke with J.A.’s mother
later.[69]
64.
Randy
Firchau reported the incident to Watonwan County Human Services which initiated
licensing and child protection investigations.[70]
65.
Not
long after Licensee listened to J.R.’s telephone message, J.A. and his mother
arrived at Licensee’s home. J.A.’s
mother had just picked up J.A. from the high school after he was found by Mr.
Firchau. J.A. and his mother were very
upset about what had happened.[71]
66.
Licensee
had signed permission slips from J.A.’s parents for Licensee to act in an
emergency for their children, as well as for the children to participate in
field trips and to be transported. The
permission slips were signed and dated on October 2, 2006.[72]
67.
Licensee’s
name is listed as the person to supervise field trips on the field trip
permission form. In different ink and
different handwriting from the rest of the form, the names of Licensee’s
husband, Lisa Beilke and J.R. are added as possible field trip
supervisors. There is nothing to show
that the additional names were on the form when J.A.’s parents signed them or
that they were aware that the additional names were added as supervisors after
they signed the forms.[73]
68.
Licensee
did not have her Order of Revocation posted as required by
69.
J.A.’s
father was never aware that there was a Revocation Order and had never seen it
posted at Licensee’s home[75]
70.
While
the Licensee’s appeal of the maltreatment determination and disqualification
were pending, she was required to have a second adult caregiver present with
her during daycare hours.[76]
71.
Licensee
agreed to the condition requiring a second adult caregiver and provided Ms.
Stordalen with the name of Lisa Bielke, who would be working with her, along
with information necessary for a background study and information showing that
Ms. Bielke had taken the training required for her to work in the daycare.[77]
72.
On
January 23, 2007,
73.
When
Joan Stordalen and Deanne Louris visited Licensee’s home on July 23, 2007,
there was a second adult caregiver in the home with Licensee but that second
adult caregiver had not had a background study completed.[79]
74.
Also on
July 23, 2007, Ms. Stordalen and Ms. Louris noted that there was no background
study completed for J.R., Licensee’s 14-year-old helper.[80]
Based
on the Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
Jurisdicitional
Conclusions
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.
2.
The
Notice of Hearing is proper in all respects and the County and the Department
have complied with all procedural requirements of law and rule.
3.
At all
times relevant to these proceedings, Licensee was licensed as a family daycare
provider.
4.
The
issues to be determined by this contested case proceeding are defined by the
agency’s Notices and Orders for Hearing, which are required by Minn. R.
1400.5600, subp. 2.D. to include “[a] statement of the allegations or issues to
be determined . . . .”
Conclusions
Regarding Maltreatment and Disqualification
5.
A
background study was required for Licensee because the Department is required
to conduct a background study of “the
person or persons applying for a license.”[81]
6.
A
person who is the subject of a background study shall be disqualified from
direct contact with persons receiving services from the license holder if the
background study shows “substantiated
serious or recurring maltreatment of a minor under section 626.556 . . . for
which: (i) there is a preponderance of evidence that the maltreatment occurred,
and (ii) the subject was responsible for the maltreatment.”[82]
7.
To
sustain the finding of maltreatment by physical abuse and the disqualification
due to such maltreatment, the Department must demonstrate by a preponderance of
the evidence that Licensee’s actions caused “any physical injury, mental injury
or threatened injury, inflicted by a person responsible for the child’s care on
a child other than by accidental means . . .” and that the maltreatment was
serious or recurring.[83]
8.
The
Department failed to prove by a preponderance of the evidence that Licensee
caused any physical injury, mental injury or threatened injury.
9.
There
is insufficient basis in the record to disqualify Licensee from direct contact
with children served by a licensed program.
Conclusions
Regarding Temporary Immediate Suspension
10.
The
Commissioner of Human Services shall impose a temporary immediate suspension of
a day care license “[i]f the license holder’s actions or failure to comply with
applicable law or rule . . . pose an imminent risk of harm to the health,
safety, or rights of persons served by the program.”[84]
11.
The
temporary immediate suspension “shall remain in effect pending the
commissioner’s final order under section 245A.08, regarding a licensing
sanction issued under subdivision 3 following the immediate suspension” if the
commissioner demonstrates “that reasonable cause exists to believe that the
license holder’s actions or failure to comply with applicable law or rule poses
. . . an imminent risk of harm to the health, safety, or rights of persons
served by the program.”[85]
12.
The
Department demonstrated that Licensee violated the supervision requirements of
Minn. R. 9502.0365, subp. 5 and 9502.0315, subp. 29a on the morning of
July 17, 2007 when she failed to insure that J.A. was picked up from his
swimming lesson and brought to her daycare.
13.
The
Department demonstrated that Licensee violated Minn. R. 9502.0435, subp.
9.D. by failing to obtain written permission from J.A.’s parents for him to
attend activities such as swimming lessons and t-ball away from Licensee’s home
during daycare hours, or to be supervised by individuals other than Licensee.
14.
The
Department demonstrated that Licensee violated Minn. Stat. § 245A.06 by
failing to post the April 24, 2007 Order of Revocation.
15.
The
Department demonstrated that Licensee violated Minn. Stat. § 245C.03 by
failing to insure that background studies were completed on a second adult
caregiver who was in her home on July 23, 2007, or on Licensee’s helper, J.R.
16.
None of
the violations of statutes or rules described in Conclusions 11 through 14,
above, demonstrates that reasonable cause currently exists to believe that Licensee’s
actions or failure to comply with applicable law or rule pose an imminent risk
of harm to the health, safety, or rights of persons served by the program.
17.
There
is not a sufficient basis for the temporary immediate suspension of Licensee’s
license to remain in effect pending the Commissioner’s final order regarding
revocation of the Licensee’s license under section 245A.08, subdivision 3.
Conclusions
Regarding Revocation
18.
Minn.
R. 9502.0385, subp. 1.A. requires that “[t]he provider . . . discuss methods of
behavior guidance with parents . . . and the parent’s standards shall be
considered by the provider within the context of this part when guiding the
behavior of a child.”
19.
Minn.
R. 9502.0385, subp. 1.B. instructs that “[b]ehavior guidance used by caregivers
must be constructive, positive, and suited to the age of the child.”
20.
Minn.
R. 9502.0395, subp. 2.A. establishes the following standards for behavior
guidance:
No
child shall be subject to corporal punishment or emotional abuse. ‘Corporal punishment’ means the nonaccidental
infliction of physical pain on a child by a caregiver. Corporal punishment includes, but is not
limited to, rough handling, shoving, hair pulling, ear pulling, shaking,
slapping, kicking, biting, punching, hitting and spanking. ‘Emotional abuse’ means the infliction of
verbal or psychological abuse on a child by a caregiver. Emotional abuse includes, but is not limited
to, name calling, ostracism, shaming, derogatory remarks about the child or the
child’s family, and threats which threaten, humiliate, or frighten the
child.
21.
“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 . . . .”[86]
22.
To
sustain the revocation of a child care license, the Department must demonstrate
that reasonable cause exists to revoke a child care license based on the
licensee’s failure to comply with licensing laws and rules.[87]
23.
If the
licensee demonstrates by a preponderance of the evidence that she was in full
compliance with the laws or rules that the Department alleges she violated, the
revocation will not be upheld.[88]
24.
The
Department has demonstrated that reasonable cause exists to revoke Licensee’s
child care license based on Licensee’s failure to comply with licensing rules
regarding appropriate behavior guidance and discipline.
25.
The Licensee
has failed to demonstrate by a preponderance of the evidence that she was in
full compliance with the licensing rules regarding appropriate behavior
guidance and discipline.
26.
The
Department has met its burden under Minn. Stat. § 245A.08, subd. 3 to support
revocation of Licensee’s license to provide child care.
27.
The Administrative Law Judge adopts as
Conclusions any Findings that are more appropriately described as Conclusions.
28.
The Memorandum that follows explains the reasons
for these Conclusions, and the Administrative Law Judge therefore incorporates
that Memorandum into these Conclusions.
Based on the Conclusions, and
for the reasons explained in the accompanying Memorandum, the Administrative
Law Judge makes the following:
RECOMMENDATIONS
IT
IS RECOMMENDED that the Commissioner of the Department of Human Services
RESCIND the finding against Lori Schiller of maltreatment by physical abuse
along with her disqualification from direct contact with persons served by a
licensed program;
IT
IS RECOMMENDED that the Commissioner of the Department of Human Services
DISMISS the Order for Temporary Immediate Suspension of Lori Schiller’s license
to provide family daycare; and
IT IS RECOMMENDED that the Commissioner of the Department of Human Services AFFIRM the decision to revoke the family child care license of Lori Schiller.
Dated: April 14, 2008
s/Raymond
R. Krause
|
RAYMOND R. KRAUSE Chief Administrative Law Judge |
Reported: Digitally
recorded
NOTICE
This report is a
recommendation, not a final decision.
The Commissioner of the Minnesota Department 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
Cal Ludeman, Commissioner, Minnesota Department of Human Services, P.O. Box,
64998,
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.
MEMORANDUM
Maltreatment Determination and
Disqualification
The County determined
that Licensee physically abused children in her care, basing the finding of
maltreatment and the resulting disqualification on that determination.
In this case, there was
no evidence presented that any of the children suffered any physical harm or
damage as a result of Licensee’s actions.
The evidence showed that Licensee spanked children, may have hit or
tapped some children with the remote control, picked up a child by the arm and
put him on the couch, hit one child (who did not cry) with a fly-swatter and
pulled a child’s ear a number of times.
While the Administrative Law Judge does not minimize the seriousness of
these actions by Licensee, and does not condone them, no evidence was presented
to demonstrate that any child was injured by Licensee’s actions. There was no claim that Licensee’s actions
left a mark, swelling, bruises, abrasions, or any other sort of injury, or that
a child required any medical attention as a result of her actions.
The standards for
physical abuse under the maltreatment statute are different from those for
corporal punishment under the licensing statute. As discussed below, Licensee’s actions were
prohibited by the licensing rules. They
did not, however, rise to the level of physical abuse as defined by the
maltreatment statute because they did not result in an injury.
The Department was unable
to support, by a preponderance of the evidence, several of the allegations on
which the original maltreatment determination was made. The only evidence that a child was hit with a
wooden spoon was in a statement made by J.M. in an interview conducted July 19,
2007, eight months after the maltreatment determination was made. M.P., who was seven years old at the time of
the interview, made vague allegations about Licensee hitting children with a
spoon only after being prompted by Ms. Stordalen, who was interviewing
J.M.:[90]
P.R., the only child to
testify about Licensee hitting children with a measuring stick, recanted on her
original statement about that when she was questioned at the hearing.[91] L.G. was the only person who claimed to have
seen Licensee tape a young child’s mouth shut.
L.G.’s statements about the tape were inconsistent. At one time, L.G. said that the child, whose
name he did not know, had her mouth taped closed and then got up and played
with the tape on her mouth until her nap time.
At another time, L.G. said that the child just sat there for one to two
hours with the tape on her mouth. No one
else ever saw Licensee put tape on a child’s mouth. This less-than-certain testimony by L.G. is
insufficient when compared with the many people, children and adults alike, who
saw Licensee interact with the daycare children frequently but never saw her
tape a child’s mouth closed.
Of the original
allegations on which the November 2006 maltreatment determinations were made,
this leaves hitting with a remote control and spanking. The testimony of the witnesses who were
subjected to this treatment was credible, nevertheless, as discussed above, these
actions do not rise to the level of maltreatment. If there is no basis for a determination of
maltreatment, then there is no disqualification.
Temporary Immediate Suspension
The Department imposed
the TIS within six days of the incident when Licensee failed to pick up
J.A. Although it was not unreasonable at
the time for the Department to have concerns about Licensee’s lack of
attentiveness to the whereabouts of children in her care, it is apparent that
this incident was an anomaly. There is
no evidence that children in Licensee’s care continue to be at imminent risk
due to her lack of supervision, or because she failed to post the revocation
order or have the background checks performed on her second adult caregiver or
her teen-aged helper.
This does not minimize
the seriousness of Licensee’s actions, especially her failure to pick up J.A.
as promised. J.A. was subjected to
significant dangers as a result of Licensee’s carelessness. Fortunately, J.A. was not harmed in any
way. The testimony of Licensee
demonstrates that she has learned from this incident and that she cannot ever
assume that a child is being supervised by anyone other than herself unless
another person confirms that she or he is providing the requested supervision.
Although Licensee’s
treatment of J.A. could be found to be neglect under Minn. Stat. § 626.556, subd.
(f)(3), the Department has not alleged or determined in its Notice or Orders that
Licensee committed maltreatment by neglect. Given that the allegations in the Notice and
Order for Hearing in this matter do not allege neglect under the maltreatment statute,
the Administrative Law Judge is limited in his ability to make findings
concerning the incident with J.A.
Revocation
The Department has shown
reasonable cause to revoke Licensee’s license based on her record of
inappropriate behavior guidance and corporal punishment. The licensing rule explicitly states that
spanking, rough handling and ear-pulling are prohibited. The Department presented repeated, credible
statements to supports its findings that Licensee committed prohibited corporal
punishment to discipline children in her care.
In addition, while the
evidence is inconclusive as to whether M.T. put his plate with leftover pork
chops on the top of the garbage or on the counter next to the garbage, it is
undisputed that Licensee took the plate, put it back on the table, and ordered
M.T. in a manner that was intimidating to M.T., to eat the pork chops. This incident upset M.T. enough so that he
was still thinking about it three months later when, faced with a new daycare
situation, he asked his mother whether he was going to be forced to eat food he
did not like by the new provider.
Corporal punishment includes “emotional abuse” which, under the
licensing rule, “includes . . . shaming . . . and threats which threaten,
humiliate, or frighten the child.”[92]
Licensee has engaged in a
pattern of corporal punishment, including emotional abuse. This behavior on the part of Licensee is
sufficient to justify revocation of her license to provide child care.
Irrelevant Testimony
In
addition to the testimony referred to in the Findings of Fact, Conclusions and
the above paragraphs of this memorandum, there was a significant amount of
testimony about several other subjects not relevant to these proceedings. While
they may be the basis for action against the Licensee, the various Notices and
Orders fail to enumerate these as reasons for the contemplated action.
For example, although it is true that J.R.,
the teen-aged helper, should not have been permitted to walk children to and
from activities away from Licensee’s home without adult supervision, none of
the actions taken against Licensee were based on her practice of relying on
J.R. to accompany the younger children.
Similarly, testimony about whether Licensee provided breakfast to all of
the children when they asked for it, whether she made them do chores, and
whether Licensee made the children stay outside or stay quiet inside is not
related to any of the stated reasons for any of the Department’s disciplinary
actions in this case.
Finally, the question of
whether Licensee complied with the TIS when she provided care to one or two
other families also need not be decided because it is not the basis of any
action taken against her. Licensee had
no notice that she would have to defend herself against this set of allegations
and it is beyond the scope of this hearing.
R. R. K.
[1]
[2]
[3]
[4] Hearing Exhibit O (Exhib. O), letter from Deanne Louris and Joan Stordalen to Lori Schiller (Nov. 1, 2006)
[5] Hearing Ex. O, Bates stamp page 74.
[6] Hearing Ex. F, Bates stamp page 36.
[7]
[8] Hearing Ex. F., Bates stamp page 41.
[9] Hearing Ex. G, Bates stamp page 42.
[10] Hearing Ex. G, Bates stamp page 45.
[11] Hearing Ex. F, Bates stamp page 39.
[12]
[13] Hearing Ex. D.
[14] Hearing Ex. C, Bates stamp pages 8-9.
[15] Hearing Ex.C, Bates stamp pages 6-7. There is nothing in the hearing record to show when Licensee appealed the TIS. The ALJ assumes that there was a timely appeal, since the Department issued the Notice of and Order for Hearing within eight days of the date of the TIS.
[16] Testimony of Lori Schiller.
[17]
[18]
[19]
[20]
[21] Test. of L. Schiller and D. Schiller.
[22]
[23] Testimony of L.G. For purposes of protecting the privacy of the minors who testified at the hearing or gave statements, this Recommended Order uses their initials, as well as the initials of any of their parents whose testimony is referred to. The accompanying Non Public Addendum identifies each of these individuals by name.
[24] Test. of L. Schiller.
[25] Test. of L. Schiller.
[26] Test. of L. Schiller.
[27] Testimony of Joan M. Stordalen.
[28]
[29] Testimony of Deanna Louris.
[30] Ex. S.; test. of D. Louris. L.G. and E.G. are siblings.
[31] Testimony of T.F.
[32] Testimony of J.R. and test. of L. Schiller.
[33] Testimony of M.T..
[34] Test. of M.T.
[35] Test. of T.F.
[36]
[37]
[38] Test. of J. Stordalen and D. Louris; Hearing Exhib. S.
[39] Testimony of L.G., E.G, S.E., J.R.
[40] Testimony of P.R., J.R. and S.E.
[41] Test. of P.R. and S.E.
[42] Test. of L.G. and E.G.
[43] Test. of E.G.
[44] Hearing Ex. S, interview of E.G.;test. of E.G.
[45] Test. of E.G.
[46] Test. of L.G.
[47] Test. of L.G.
[48] Hearing Ex. S, interview of P.R.; test. of P.R.
[49] Hearing Ex. R.
[50] Test. of J.R.
[51] Test. of J.R.
[52] Testimony of Kathleen Thornblad, S.E., L.B., Sarah Schiller and Kathleen Phiesse.
[53] Test. of L. Schilling; Hearing Ex. E, Bates stamp page 21.
[54]
[55]
[56] Hearing Ex. E, Bates stamp page 21.
[57] Test. of J.R.
[58] Test. of Lori Schilling.
[59] Test. of J.R.
[60] Test. of J.R.
[61]
[62]
[63]
[64]
[65] Test. of L. Schiller and testimony of Kathleen Thornblad.
[66] Testimony of Rick Eisfeld, Hearing Ex. E, Bates stamp page 23.
[67] Testimony of Randy Firchau.
[68]
[69] Test. of R. Eisfeld, Hearing Ex. E, Bates stamp page 23.
[70] Hearing Ex. E, Bates stamp page 20; Hearing Ex. D, Bates stamp page 18.
[71] Test. of L. Schiller and K. Thonblad.
[72] Hearing Ex. 1.
[73]
[74] Hearing Ex. E, Bates stamp page 21.
[75] Hearing Ex. Q.
[76] Hearing Ex. O, Bates stamp page 74.
[77] Test. of L.B.; Hearing Ex. P, Bates stamp pages 87, 88.
[78] Hearing Ex. K, Bates stamp pages 59-61.
[79] Hearing Ex. C, Bates stamp page 9.
[80]
[81]
[82]
[83]
[84]
[85] Minn. Stat. § 245A.07, subd. 2a(a).
[86]
[87]
[88]
[89] Webster’s New World Dictionary,
[90] Hearing Ex. R at page 5. It is not clear what Ms. Stordalen was referring to when she said “And then you said something about her hitting you with a spoon?” because J.M. had not mentioned anything about Licensee hitting anyone with a spoon prior to Ms. Stordalen’s question about it.
[91] Test. of P.R.
[92]