OAH 43-1800-19891-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF HUMAN SERVICES

In the Matter of the Temporary Immediate Suspension of the Family Child Care License of Sara Kissner-Kirt

FINDINGS OF FACT,

CONCLUSIONS AND RECOMMENDATION

The above matter came on for hearing before Administrative Law Judge Scott Newman on October 1, 2008 at the Benton County Human Services, 531 Dewey Street, Foley, MN 56329. The OAH record was closed at the end of the hearing on October 1, 2008.

Michelle L. Meyer, Assistant Benton County Attorney, 615 Highway 23, PO Box 189, Foley, MN 56329, appeared on behalf of the Department of Human Services. Sara Kissner-Kirt (Licensee) appeared without counsel.

STATEMENT OF THE ISSUE

Should the order of temporary immediate suspension of Sara Kissner-Kirt’s family daycare license remain in effect pending a final order?

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

FINDINGS OF FACT

1. At all material times, Sara Kissner-Kirt was licensed to provide family child care services.[1]

2. At all material times, Natalie Burwick was employed by Benton County Human Services as a licensor and as such was responsible for monitoring the legal compliance of family daycare licensees.[2]

3. The Licensee conducts her daycare business at her home.[3]

4. Burwick made a routine telephone call to the Licensee’s home at 10:52 a.m. on August 26, 2008. At that time, a child answered the telephone. In response to questions by Burwick, the child told Burwick that the Licensee was not there and that no adults were present.[4]

5. Burwick then drove to the Licensee’s home, arriving at 11:35 a.m.[5]

6. A child, later determined to be the Licensee’s 11-year-old daughter, answered the door and told Burwick that her mother was not at home. At that time, Burwick observed three young children looking out of a window at her.[6]

7. At 11:40 a.m., while Burwick was still standing at the door the Licensee arrived home, accompanied by her 14-year-old daughter.[7]

8. While still standing outside of the home, Burwick inquired of the Licensee as to whether any children were present in the home other than the 11-year-old who had answered the door. At that time, the Licensee responded by telling Burwick the only other child present in the home was a four-year-old girl.[8]

9. Burwick then requested and received permission to go into the Licensee’s home.[9]

10. Upon entering the home, Burwick discovered that a one and one-half-year-old boy was there. The Licensee claimed she had forgotten he was in daycare that day.[10]

11. Burwick then saw an infant car seat and inquired whether any infants were present in the home. Licensee responded by acknowledging that a ten-month-old infant was present in daycare, stating she had forgotten the infant was also present.[11]

12. Burwick then requested that the Licensee disclose all of the children that were present in the Licensee’s home at that time. The following children were determined to be present:

a. A ten-month-old girl.

b. A one and one-half-year-old boy.

c. A four-year-old girl.

d. The Licensee’s four-year-old daughter.

e. The Licensee’s eight-year-old son.

f. A nine-year-old boy.

g. The Licensee’s 11-year-old daughter.[12]

13. No adult was present in the home from at least 10:52 a.m. until 11:35 a.m. that day.[13]

14. The Licensee had left her 11-year-old daughter in charge of caring for the six other children while the Licensee left to pick up her 14-year-old daughter from a friend’s home.[14]

15. Prior to August 26, 2008, the Licensee had left children in her care without adult supervision.[15]

16. While present in the home, Burwick observed the Licensee’s 14-year-old daughter holding and changing the infant.[16]

17. Neither of the Licensee’s 11-year-old or 14-year-old daughters are approved helpers or have had training in Shaken Baby Syndrome (SBS) or Sudden Infant Death Syndrome (SIDS).[17]

18. On the basis of the information provided to the Minnesota Department of Human Services by Burwick, the Department issued an order of temporary immediate suspension of the Licensee’s license effective August 27, 2008.[18]

19. The Licensee timely requested a hearing on the suspension order.[19]

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

CONCLUSIONS

1. The Commissioner of Human Services and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 245A.07, subds. 2 and 2a.

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 substantive and procedural requirements of law and rule.

4. Pursuant to Minn. Stat. § 245A.07, subd. 2a, in order to sustain a temporary immediate suspension, the Department must show that reasonable cause exists to believe that the Licensee’s failure to comply with applicable law or rule poses a current imminent risk of harm to the health, safety, or rights of persons served.

5. When a temporary immediate suspension is appealed, the scope of the appeal hearing is limited solely to the issue of whether the temporary immediate suspension “should remain in effect” pending a final order issued on a subsequent licensing sanction. Further, the burden of proof 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 to those served by the licensee. Thus, the Administrative Law Judge is required to address the current situation and not only whether reasonable cause existed at the time the temporary immediate suspension was issued.

6. Under licensing rules, “supervision” requires a caregiver to be within sight or hearing of an infant, toddler, or preschooler at all times; and for school-age children, a caregiver must be available for assistance and care so that the child’s health and safety is protected.[20] A “caregiver” means the provider, a substitute, a helper, or another adult giving care in the residence.[21] A “substitute” means an adult at least 18 years of age; a “helper” is a person between the ages of 13 and 18 who assists the provider with the care of children.[22] All caregivers, including substitutes and helpers, must receive training on reducing the risk of SBS and SIDS.[23]

7. On August 26, 2008, the Licensee left seven children in her home without supervision, in violation of Minn. R. 9502.0315, subp. 29A.

8. On August 26, 2008 the Licensee used an 11-year-old child as a “substitute,” in violation of Minn. R. 9502.0315, subp. 29.

9. On August 26, 2008, the Licensee used her 14-year-old daughter as a “helper.”[24] The daughter did not have SIDS or SBS training, in violation of Minn. Stat. § 245A.50, subd. 5.

10. On August 26, 2008 the Licensee gave false or misleading information during the investigation of her compliance with applicable law or rules.[25]

11. The Department has demonstrated reasonable cause exists to believe that the Licensee’s failure to comply with licensing rules and statutes poses an imminent risk of harm to children in her care. Therefore the immediate suspension of Licensee’s daycare license should remain in effect until a final licensing sanction, if any, is determined.

12. These Conclusions are reached for the reasons set forth in the Memorandum below, which is hereby incorporated by reference into these Conclusions.

13. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions, and as Findings any Conclusions that are more appropriately described as Findings.

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

RECOMMENDATION

The Administrative Law Judge recommends to the Commissioner of Human Services that:

The order of temporary immediate suspension of the family daycare license of Licensee be AFFIRMED.

Dated: October 9, 2008

s/Scott J. Newman

SCOTT J. NEWMAN

Administrative Law Judge

Reported: Digitally Recorded

NOTICES

This report is a recommendation, not a final decision. The Commissioner of Human Services (Commissioner) 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 and 245A.07, subd. 2a(b), the parties adversely affected have ten (10) calendar days to submit exceptions to this Report and request to present argument to the Commissioner. The record shall close at the end of the ten-day period for submission of exceptions. The Commissioner then has ten (10) working days from the close of the record to issue his final decision. Parties should contact Cal Ludeman, Commissioner of Human Services, Box 64998, St. Paul, MN 55155, (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

The sole issue in this matter is whether the temporary immediate suspension of Ms. Kissner-Kirt’s license should remain in effect pending the Commissioner’s final order.[26] In determining this issue, the burden of proof is on the Commissioner to demonstrate that reasonable cause exists to believe that Ms. Kissner-Kirt failed to comply with applicable law and that those actions pose an imminent risk of harm to the children she serves in her program.[27] By the Licensee’s own admission, she failed to provide adult supervision for the children served at her daycare facility. Rather, she placed the responsibility for the safety of six young children in the hands of an 11-year-old child. While the Licensee feels that her 11-year-old daughter is a responsible person, a child this age does not meet the legal requirements of a “caregiver.”[28]

In addition, the Licensee allowed her 14-year-old daughter to help her in the daycare facility by holding and changing an infant. The 14-year-old did not have the necessary training to be a helper under licensing laws.

Unfortunately, rather than admitting that she was wrong in failing to properly supervise and protect the children in her daycare facility, the Licensee attempted to justify her actions on the basis of need and accused the Department of selectively monitoring her in an attempt to catch her in violation of licensing requirements. This response has led the undersigned to conclude that the Licensee did indeed intentionally provide false information to Ms. Burwick in the hopes that she would leave without discovering the total number of children she had left unsupervised in her daycare facility on August 26, 2008.

Despite the fact that the Licensee has signed a correction order agreeing to correct these violations,[29] the Administrative Law Judge finds that the Licensee continues to pose an imminent risk of harm to the health, safety and rights of the children in her program. This determination is made on the basis of the violations found in this Report; the Licensee’s admission that prior to August 26, 2008, she had left children in her care without providing adult supervision; and the Licensee’s failure to understand the danger her conduct posed to the children in her care.

The Administrative Law Judge finds that the Commissioner does have reasonable cause to continue the suspension.

S. J. N.

[1] Testimony of Natalie Burwick & Exs. 1, 2, 5 & 6.

[3] Test. of N. Burwick and Sara Kissner-Kirt.

[7] Test. of N. Burwick. Test. of S. Kissner-Kirt.

[9] Test. of N. Burwick and S. Kissner-Kirt.

[12] Test. of N. Burwick and S. Kissner-Kirt.

[16] Test. of N. Burwick and S. Kissner-Kirt.