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OAH Docket No. 12-1800-19743-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of the Temporary Immediate Suspension of the License of Michaela Bang and Tina Bolgrean to Provide Family Child Care |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter was heard by Administrative Law Judge Steve M. Mihalchick on July 16, 2008, at the Clay County Courthouse, County Attorney's Office Conference Room, in Moorhead, Minnesota. Licensees were allowed to submit photographs after the hearing showing the visibility along the sidewalk on the west side of the facility.[1] The photographs were received on July 28, 2008, and the Office of Administrative Hearings (OAH) record closed on that date.
Michelle Caduff Winkis, Assistant Clay County Attorney, appeared on behalf of Clay County Social Services (the County) and the Minnesota Department of Human Services (the Department or DHS).
Michaela (Micki) Bang and Tina Bolgrean (the Licensees), appeared on their own behalf.
Whether reasonable cause exists to believe that the Licensees pose an imminent risk of harm to the health, safety or rights of children in their care based upon an incident of two children under their care being unsupervised for several minutes.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Licensees are two women who provide licensed
family child care in Barnesville, Minnesota.
The name of their business is Micki & Tina's Daycare, and it is
operated in a portion of the lower-level of a former church building that they
rent at
2.
The church building is on the northwest corner
of a city block in Barnesville. Its front
door is at the northwest corner of the building and is a double door opening to
the northwest. One sidewalk runs along
3. There is a play area on the south side of the church building for the daycare children. Licensees have placed some playground equipment there for climbing, swinging, and sliding. Though they were not required to do so, Licensees intended to fence in the play area. As of June 5, 2008, the fence posts had been installed, but not the fencing. That left the play area open to the sidewalk, boulevard, and street beyond.[4] The fence was completed sometime before July 14, 2008.[5]
4.
South of the play area is the “blue-green” home
of the neighbor to the south, Suzanne Keng, and beyond that is an unpaved alley
that crosses the block at about its midpoint.
Beyond that is a pink house.[6] The Administrative Law Judge takes notice
that according to Google Maps, the block is approximately 300 feet long from
5. On June 5, 2008, Licensees had 12 children in care, three of whom were infants. They also had a 15-year-old helper assisting them who had been with them only a few days at a time. The helper had not had any training, particularly in SIDS or shaken baby syndrome, and Licensees had not submitted a background check form for her. She had been told by Ms. Bang that when she was watching the children she was to play with them, watch where they were, and if they were doing something they weren't supposed to be doing she was to tell them to stop.[7]
6. Apparently after lunch that day, Licensees were putting the three infants down for their naps and asked the helper to take the other children outside to play. The youngest of those children were a boy 18 months old and a boy three years old. They were cousins and the sons of Ms. Bolgrean's brothers, Jason and Jeff Bolgrean.[8] After some period of time, the younger boy left the play area and began walking southward down the sidewalk. The three-year-old then did so too, perhaps following the 18-month-old. The helper did not notice that they had left the yard. Neither did Ms. Bang's 12-year-old daughter who was present and supposed to be keeping an eye on the children as well.[9]
7.
However, the woman who lived in the house to the
east of the church building had observed the children playing in the backyard
play area without any adult supervision and had observed the 18-month-old
wander off. So she ran to find the child
down the block and did so, apparently beyond the pink house and approaching the
corner at
8. After she had put down one of the infants, Ms. Bolgrean went outside to check on the children, leaving Ms. Bang to finish putting down the other two infants. She went down the sidewalk on the west side of the church building to the area of the play area. She saw that the helper was there with several of the children and then saw the three-year-old down the sidewalk about even with the blue-green house. She then saw the 18-month-old farther down the sidewalk, across the alley and in front of the pink house being returned by the neighbor. She went to meet her and brought the boys back.[11]
9. Ms. Bang finished putting down her two infants and went to see what was happening outside. She stood by the front door, holding it open and looking down the sidewalk. At some point she saw Ms. Bolgrean, and the two boys, and perhaps the neighbor, coming up the sidewalk.[12]
10. The County received a maltreatment report on June 5, 2008, regarding this incident. A Child Protection investigation was conducted, and it was determined that Licensees had committed maltreatment in the form of neglect and inadequate supervision.[13]
11. On June 10, 2008, Kathleen Cardinal, the licensing worker for this facility, recommended to the Department that Licensees' family childcare license be temporarily immediately suspended. She did so based upon the facts described above and the policy of the County to recommend temporary immediate suspensions when it is found that children have been unsupervised for any period of time. She was also concerned about the poor judgment shown by Licensees in this incident and by Ms. Bang in the past. Ms. Bang had previously been issued correction orders for being overcapacity once and for using substitutes who had not had SIDS training.[14]
12. On June 11, 2008, the Department issued an Order of Temporary Immediate Suspension to Licensees.[15] It was served upon Licensees that day. Licensees filed a timely appeal.
13. On June 19, 2008, the Notice of and Order for Hearing was served on the Licensees setting the hearing to take place on July 16, 2008.
14. The fathers of the two young boys testified in favor of the Licensees at the hearing. They both felt that the temporary immediate suspension was inappropriate. They emphasized that their sons had wandered only short distances before they were recovered by the neighbor and that they would have been discovered by Ms. Bolgrean quickly in any event. In their view, the care provided by Licensees is excellent. Other daycare parents expressed similar views of the excellent care provided by Licensees.[16]
15. Suzanne Keng, the neighbor to the south and next to the play area, has observed the children playing outside several times. She feels that the completion of the fence and additional play equipment has improved the ability to supervise the children and feels that the children have always been well supervised.[17]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Commissioner of Human Services have jurisdiction to consider this matter pursuant to Minn. Stat. § 14.50 and 245A.07, subds. 2 and 2a.
2. The Department, through Clay County Social Services, gave proper and timely notice of the hearing and has complied with all procedural requirements of law and rule.
3. Under Minn. Stat. § 245A.07, subd. 2, if a license holder’s actions or violations, or the actions of others, pose an imminent risk of harm to the health, safety, or rights of persons served by the license holder’s program, the Commissioner must act immediately to temporarily suspend the license and inform the licensee by personal service.
4. If a license holder appeals an order immediately suspending a license, the scope of the resulting expedited hearing is limited solely to the issue of whether the temporary immediate suspension should remain in effect pending the Commissioner’s final order under Minn. Stat. § 245A.07, subd. 3, following the immediate suspension. The burden of proof in temporary immediate suspension hearings is limited to the Commissioner’s demonstration 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.
5. The Administrative Law Judge shall recommend “whether the immediate suspension should remain in effect pending the Commissioner’s final order regarding a final licensing sanction.”[18]
6. The Department has demonstrated that reasonable cause exists to believe that Licensees' failure to adequately supervise the two daycare children who wandered off down a sidewalk on June 5, 2008, and remained unsupervised and out of the sight and hearing of Licensees or their helper for several minutes poses an imminent risk of harm to the health, safety, or rights of the children served by Licensees' daycare program.
7. The Order of Temporary Immediate Suspension should remain in effect pending the Commissioner’s final order regarding a final licensing sanction.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the Order of the Department of Human Services temporarily immediately suspending the family child care license of Michaela Bang and Tina Bolgrean be AFFIRMED.
Dated: August 1, 2008
/s/ Steve M. Mihalchick
__________________________
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Digitally Recorded
This report is a recommendation, not a final
decision. The Commissioner of Human
Services (the Commissioner) will make the final decision after a review of the
record. The Commissioner may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this report to file Exceptions to the report. At the end of the exceptions period, the
record will close. The Commissioner then
has 10 working days to issue his final decision. Parties should contact Cal Ludeman,
Commissioner of Human Services,
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.
The sole issue in this case is whether the Licensees pose an imminent risk of harm to the health, safety, or rights of the children served by their daycare.
Licensees do not dispute that there was a failure of supervision that allowed the two young boys to wander off down the block. The County workers appropriately assigned that failure to Licensees rather than to the helper. Part of the failure to supervise involved using a new helper with very little training and assigning her to supervise 7, 8, or 9 children in a play area. As Ms. Cardinal stated, this demonstrated a lack of judgment that will not be cured by a fence. Licensees will have to work with the County to address the issues that have arisen in this matter.
Accordingly, the Administrative Law Judge finds that there is a risk of imminent harm to the daycare children and recommends that the temporary immediate suspension remain in effect pending a final licensing decision from the Department.
S. M. M.
[1] Exhibit 17.
[2] Testimony of Michaela Bang.
[3] Exhibit 5; testimony of various witnesses.
[4] Exhibit 5; testimony of various witnesses.
[5] Exhibit 12; testimony of Michaela Bang.
[6] Exhibits 5 and 13; testimony of various witnesses.
[7] Exhibit 10; testimony Tina Bolgrean, Michaela Bang, and Kathleen Cardinal.
[8] They are also Ms. Bang’s nephews according to Exhibit 8, Ms. Bang’s statement.
[9] Exhibit 10.
[10] Exhibit 2.
[11] Testimony of Tina Bolgrean.
[12] Exhibits 8 and 17; testimony of Michaela Bang.
[13] Exhibit 3.
[14] Exhibit 7; testimony of Kathleen Cardinal.
[15] Exhibit 1.
[16] Testimony of Jason and Jeff Bolgrean; Exhibits 14, 15 and 16.
[17] Exhibit 13.-
[18] Minn. Stat. § 245A.07, subd. 2a(a).