OAH 7-1800-19451-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

In the Matter of the Temporary Immediate Suspension of the Family Child Care License of Kellie Bokusky

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDATION

This matter was heard by Administrative Law Judge (ALJ) Richard C. Luis at the Hennepin County Human Services and Public Health Department Office in Minneapolis on February 15, 2008. Michael Q. Lynch, Assistant Hennepin County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, MN 55415 represented the Hennepin County Human Services and Public Health Department (“Local Agency”) and the Minnesota Department of Human Services (“Department”).

Kellie Bokusky appeared on her own behalf, without counsel. The hearing record closed at the conclusion of the proceedings on February 15, 2008.

STATEMENT OF THE ISSUE

Whether reasonable cause exists to continue the temporary immediate suspension of the family child care license of Kellie Bokusky, pending any final licensing sanction, for inflicting corporal punishment on a five-month-old infant in her care on January 10, 2008?

Based on the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On January 10, 2008, Kellie Bokusky (Licensee) provided daycare services to four children, one preschooler (her own child), two toddlers, and K.S., an infant girl born August 5, 2007.[1]

2. When the infant’s mother returned to pick up her daughter at 4:45 p.m. on January 10, Ms. Bokusky told her that she had spanked K.S. on the bottom sometime during the morning on the same day. The Licensee told the mother that she had “… just lost it.”[2]

3. K.S. had been dropped off by her mother at the Licensee’s home approximately 7:30 a.m. on January 10, 2008. At approximately 10:30 a.m., Ms. Bokusky’s child began crying, and the other three children in her care, including the infant, K.S., also started to cry. Ms. Bokusky opened K.S.’s diaper, and noticed that the infant had experienced a messy bowel movement that required attention. Ms. Bokusky, who was frustrated by the totality of the situation, reacted by spanking the infant on her lower buttocks and upper groin or thigh area. The Licensee was actually mad at her own child, but transferred her anger to K.S. because she does not believe in striking her children.[3]

4. When K.S.’s mother brought the infant home late in the afternoon of January 10, she observed that the child was bruised in the buttocks, upper thigh, and groin area. The bruising extended to the labia majora area of the child’s vulva. The infant was examined that evening at the Partners in Pediatrics clinic in Maple Grove, and transferred for further examination to Children’s Hospital in St. Paul.[4]

5. Dr. Alice Swenson of the Midwest Children’s Resource Center (MCRC) at Children’s Hospital examined K.S. on the evening of January 10, and determined that the child’s buttocks and upper thigh areas had been struck with an open hand, more than once, which resulted in the bruising spreading across the area and as far as the child’s labia majora.[5]

6. The parents of K.S. reported the incident to Brooklyn Park Police, who arrested the Licensee for a possible gross misdemeanor violation of Minn. Stat. § 609.377 (Malicious Punishment of a Child). When questioned by Brooklyn Park police on details of the spanking incident, Ms. Bokusky invoked her Fifth Amendment privilege. She also invoked that privilege when questioned by counsel at the hearing as to whether she had struck K.S. more than once.[6]

7. On January 11, 2008, pursuant to a recommendation from the staff of the Local Agency, the Department issued an Order of Temporary Immediate Suspension of Ms. Bokusky’s license to provide family childcare. Ms. Bokusky filed a timely appeal, and this hearing process followed.

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

CONCLUSIONS

1. The Administrative Law Judge and the Commissioner of Human Services have jurisdiction to consider this matter under Minn. Stat. §§ 14.50 and 245A.07.

2. The Department gave proper and timely notice of the hearing, and has complied with all procedural requirements.

3. Under Minnesota law, if a “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, the Commissioner shall act immediately to temporarily suspend the license.”[7]

4. At a hearing appealing an Order of Temporary Immediate Suspension, the burden of proof is on the Department to demonstrate 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.”[8] The Department may demonstrate reasonable cause by submitting statements, reports or affidavits.[9]

5. The Administrative Law Judge must determine “whether the immediate suspension should remain in effect pending the Commissioner’s final order . . . regarding a final licensing sanction.”[10]

6. The Department has demonstrated reasonable cause to believe that the Licensee failed to comply with an applicable law or rule, specifically by inflicting corporal punishment against a child in her care, in violation of Minn. R. 9502.0395, subp. 2A., resulting in maltreatment. The Department also demonstrated reasonable cause to believe that the Licensee poses an imminent risk of harm to the health, safety, or rights of children served by her daycare program, within the meaning of Minn. Stat. § 245A.07, subd. 2.

7. It is appropriate for the temporary immediate suspension of the Licensee’s family childcare license to remain in effect, pending a final Order of the Commissioner for appropriate disciplinary action, if any.

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

RECOMMENDATION

IT IS RECOMMENDED that the Commissioner AFFIRM the Order of Temporary Immediate Suspension of the family childcare license of Kellie Bokusky.

Dated: March 4, 2008.

_s/Richard C. Luis___________

RICHARD C. LUIS

Administrative Law Judge

Reported: Digitally

No transcript prepared

NOTICE

This report is a recommendation, not a final decision. The Commissioner of the 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. The final decision of the Commissioner shall not be made until this Report has been made available to the parties for at least ten calendar days. If either party takes exception to this Report or wishes to present argument to the Commissioner, they should contact Cal Ludeman, Commissioner, MN Dept. of Human Services, P. O. Box 64998, St. Paul, MN 55164-0998, telephone (651) 431-2907, to learn the procedure for filing exceptions or presenting argument.

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

Ms. Bokusky admitted to striking K.S., which is a violation of the Behavioral Guidance Rule (Minn. R. 9502.0395) governing family childcare licensure. Subpart 2A of that rule provides, in part, that “No child shall be subject to corporal punishment . . . . ‘Corporal punishment’ means nonaccidental infliction of physical pain on a child by a caregiver. Corporal punishment includes, but is not limited to . . . slapping . . . and spanking.”

The ALJ believes that continuing the Licensee’s operation, pending further investigation, would result in an imminent risk of harm to children in her care, particularly in light of her having spanked K.S. because of anger toward her own child.

It is noted that criminal charges are still pending at the Hennepin County Attorney’s Office in connection with incident involved in this Temporary Immediate Suspension proceeding. Ms. Bokusky explained that she filed an appeal in hopes that she would still be allowed to provide unlicensed daycare to one child, other than her own, whose parents desire her to continue caring for their child. That issue is not before the Administrative Law Judge, and he makes no findings or recommendation concerning that issue because it would be inappropriate to engage in such speculation at this time.

R. C. L.