OAH-43-1800-20048-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the
Revocation of Family Childcare License of Melissa S. Hudson and In the Matter
of the Revocation of the Child Foster Care License of Melissa S. Hudson and
William Hudson |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
The above matter came on for hearing
before Administrative Law Judge
Michelle Winkis, Assistant Clay County
Attorney appeared on behalf of the Department of Human Services. Melissa S. Hudson and William Hudson,
Licensees, appeared without counsel.
STATEMENT OF THE ISSUES
Whether the Commissioner of Human Services should
revoke the family childcare license of Melissa S. Hudson?
Whether the Commissioner of Human
Services should revoke the child foster care license of Melissa S. Hudson and
William Hudson?
Based on the evidence in the hearing
record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. At
all times material herein, Melissa S. Hudson (hereafter M. Hudson) was licensed
to provide family childcare services pursuant to Childcare License No. 1037847.[1]
2. At
all times material herein, M. Hudson and William Hudson (hereafter
3. M.
Hudson conducts her child daycare business at her private home.[3]
4. Debra
Nagle, hereafter Nagle, is the Child Protection Investigator for Clay County
Social Services; Karen Hellum, hereafter Hellum, is the Family Childcare
licensor for Clay County Social Services; Sara Rossow, hereafter Rossow, is the
Child Foster Care Licensor for Clay County Social Services.[4]
5. On
or about the 23rd day of June, 2008, Nagle initiated an
investigation into an allegation of child maltreatment by M. Hudson consisting
of the lack of supervision of a minor child at M. Hudson’s daycare facility on
Friday, June 20, 2008.[5]
6. Nagle
coordinated the investigation with Licensors Hellum and Rossow because M.
Hudson was licensed as a childcare provider, and M. Hudson and
7. The
investigation conducted by Nagle, Rossow and Hellum established the following
facts:
a. On June 20, 2008 M. Hudson was at home alone at her daycare
with one child, “T.,” date of birth: 12/10/04.[7] At that time,
b. M. Hudson placed T. on the floor in the living room to watch
TV while she proceeded to vacuum a back bedroom and hall. During the time she was vacuuming, she could
not see T. in the living room.[9]
c. Sometime after M. Hudson began vacuuming, T.’s father arrived
to pick him up. At that time, M.
d. The swimming pool in question is located approximately 60 feet
from the backdoor of M. Hudson’s home and is surrounded by a fence. The gate on the fence which provides access
to the swimming pool area was not locked on June 20, 2008. Earlier in the day on June 20, 2008,
e. At the time T. was found standing on the steps which lead into
the swimming pool, the swimming pool was not covered.[12]
f. Earlier on June 20, 2008, T. had gotten out of the house through
an unlocked door that provided access to the backyard. M. Hudson had found the child and had
returned him to her home, but she did not subsequently lock the door. It is likely that T. had later gained access
to the pool area through that same unlocked door.[13]
8. A
Correction Order was issued to M. Hudson on July 1, 2008 citing three violations
relating to the June 20, 2008, incident:
a. Failing to keep the minor child within sight and hearing while
M. Hudson was vacuuming.
b. Failure to supervise the minor child by allowing him to be
alone in the backyard of M. Hudson’s home.
c. Failing to have a lock on the gate which provided access to
the pool by the minor child and failure to have a cover on the pool.[14]
9. On
or about July 22, 2008, Nagle determined a child in M. Hudson’s daycare
facility had been neglected on June 20, 2008, and made a maltreatment
determination.[15]
10. As
a result of the incident of June 20, 2008, the childcare license of M. Hudson
was temporarily and immediately suspended by the Minnesota Department of Human
Services. M. Hudson did not appeal the
Order of Temporary Immediate Suspension.[16]
11. Rossow
did not join in on the recommendation for temporary immediate suspension of the
foster care license because during the applicable time period no children had
been placed in foster care with M. Hudson and
12. M.
Hudson was investigated for an incident regarding her childcare license which
occurred on August 23, 2007. On that
date, a minor child in the care of M. Hudson suffered a chipped and broken
tooth which required surgery by a dentist[18]. The investigation into that incident resulted
in the following findings:
a. No determination of maltreatment was made nor any neglect or
inadequate supervision because M. Hudson was present at the time the minor
child’s tooth was broken.[19]
b. M. Hudson did not report the injury to the minor child for a
period of approximately one month. Clay
County Social Services did not issue a Correction Order as a result of this
incident, but Hellem did speak to M. Hudson about her responsibility to report
such incidents.[20]
13. On
September 20, 2007, Clay County Social Services investigated an incident
involving an allegation that M. Hudson had spanked a foster child, DOB:
3/11/05.[21] M. Hudson admitted spanking a minor foster
child in her care on August 18, 2007. M.
14. In
September 2007, Rossow met with W. Hudson regarding an ongoing concern of
15. On
September 25, 2007, a home visit was conducted at the home of M. Hudson
and
a. Numerous piles of dog excrement were observed in the
children’s outdoor play area.
b. The backyard of the daycare facility backs up against railroad
tracks. The fence between the backyard
and the railroad tracks was down and required fixing.
c. M.
16. As
a result of the June 20, 2008, swimming pool incident and on the basis of the
past history of licensing violations, Clay County Social Services issued a
written recommendation to the Minnesota Department of Human Services
recommending that the family childcare license of M. Hudson and the child
foster care license of W. Hudson and M. Hudson be revoked.[26]
17. On
October 1, 2008, the Minnesota Department of Human Services issued an Order of
Revocation revoking License No. 1037847, the family childcare license of M.
Hudson.[27]
18. The
record failed to establish whether or not the Minnesota Department of Human
Services issued an Order of Revocation regarding License No. 1043033, the child
foster care license, and the Notice of Hearing in this proceeding did not
allege any violations of applicable child foster care statutes and rules.
19. W.
Hudson and M. Hudson appealed the “decision to revoke our foster care and
daycare licenses.”[28]
20. W.
21. M.
Hudson offered as a defense to the revocation of the childcare license the
following facts:
M. Hudson’s grandmother was very ill,
in the hospital and dying. That she was vacuuming
the home and not supervising T. because she wanted to get her housework done so
she could get to the hospital and visit with her grandmother. One of the foster children was in the process
of being adopted. There had been two
family funerals. The combination of
these family events were extremely traumatic to her and her family and she was
under extreme “stress.”[30]
Based on the Findings of Fact, the
Administrative Law Judge makes the following:
CONCLUSIONS
1. The
Department gave proper and timely notice of the hearing and has complied with
all procedural requirements of law and rule with respect to the allegation that
the Licensees violated statutes and rules applicable to their family childcare
license. The Department did not give
proper and timely notice of the hearing and has not complied with all
procedural requirements of law and rule with respect to the allegation that the
Respondents violated statutes and rules applicable to their child foster care
license. [31]
2. The
Commissioner and the Administrative Law Judge therefore have jurisdiction over
the appeal by the Licensees of revocation of their family childcare license
pursuant to Minn. Stat. §§ 14.50; 245A.07, subd. 3; and 245A.08, subd. 1. The Commissioner and the Administrative Law
Judge do not have jurisdiction over the appeal by the Licensees of revocation
of their child foster care license.
3. 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 in determining whether to revoke a license. [32]
5. On
September 25, 2007, M. Hudson was in violation of
6. On
September 25, 2007, M. Hudson was in violation of
7. On
September 21, 2007, M. Hudson was in violation of
8. On
August 18, 2007 M. Hudson violated
9. On
August 23, 2007, M. Hudson violated
10. On
June 20, 2008, M. Hudson was in violation of Minnesota rules by failing to keep
a preschooler in her care within sight and hearing at all times.[38]
11. On
June 20, 2008, M. Hudson violated
12. On
June 20, 2008, M. Hudson violated
13. M.
Hudson has chronically failed and refused to comply with the laws and rules
which govern her license and that such violations severely affect the health,
safety and rights of the persons served by her daycare facility.
14. These
Conclusions are reached for the reasons set forth in the Memorandum below,
which is hereby incorporated by reference into these Conclusions.
15. 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 revocation of the family
daycare license of M. Hudson be affirmed.
Dated: January 29, 2009
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,
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 evidence in this case reveals a
series of statutory and rule violations by the license holder, M. Hudson,
beginning in August 2007. Those prior
violations include the failure to report a serious injury to a child, spanking
a minor child, failure to provide a clean play area for children and failing to
protect children from access to railroad tracks. The most recent violations which led to the
revocation of her family childcare license occurred on June 20 2008, when she
allowed a three-and-one-half-year-old child in her care to leave her home on
two different occasions. On the second
occasion, the child in question was found on the steps leading into an above
ground swimming pool. Had it not been
for the fact that the parent of the child had come to the daycare facility for
the purpose of picking him up, this incident may have ended in tragic
consequences because M. Hudson was unaware of the fact that the child was in
the area of the pool.
The nature, chronicity and severity of
the violations are matters which the Commissioner must take into consideration
in determining whether the violations have placed the health and safety of the
children the licensee serves in jeopardy.[41] In this case, the above statutory and rule
violations reflect a pattern of conduct by the Licensee which seriously
jeopardize the health and safety of the children in her care.
M. Hudson raised as a defense the fact
that she was under a great deal of “stress” and that was the reason for
violations revolving around the June 20, 2008 incident. Stress is not a legal defense, reason or
excuse for failing to abide by statutes and rules which are designed to protect
the children that she serves.
The most troubling aspect of M.
Hudson’s demeanor in this case is the apparent lack of understanding of the
danger her actions had in placing the subject child in a position of imminent
risk of harm or death. Rather, she chose
to not accept responsibility for her actions and offer in lieu thereof a
defense which in reality was nothing more than an excuse for her failure to
fulfill her responsibilities. Under
these circumstances, the Commissioner’s revocation is appropriate.
S. J. N.
[1] Testimony of Karen
Hellem, Melissa S. Hudson, William Hudson; Exs. 2 and 3.
[2] Test. of Sara
Rossow, M. Hudson,
[3] Test. of M.
Hudson, W. Hudson, K. Hellem and S. Rossow.
[4] Test. of
Debra Nagle, K. Hellem and S. Rossow.
[5] Test. of D.
Nagle; Ex. 7.
[6] Test. of D.
Nagle, S. Rossow and K. Hellem.
[7] Test. of M.
Hudson and D. Nagle.
[8] Test. of
[9] Test. of M.
Hudson, D. Nagle; Exs. 4 and 5.
[10] Test. of M.
Hudson,
[11] Test. of M.
Hudson and
[12] Test. of M.
Hudson, D. Nagle, K. Hellem,
[13] Test. of M.
Hudson; Ex. 7.
[14] Test. of K.
Hellem; Ex. 6.
[15] Test. of D.
Nagle; Ex. 9.
[16] Test. of K.
Hellem, M. Hudson; Exs. 10 and 11.
[17] Test. of S.
Rossow.
[18] Ex. 12.
[19] Test. of D.
Nagle; Ex. 12.
[20] Test. of K.
Hellem.
[21] Test. of S.
Rossow.
[22] Test. of M.
Hudson; Ex. 13.
[23] Test. of S.
Rossow; Ex. 13.
[24] Test. of S.
Rossow.
[25] Test. of K.
Hellem; Exs. 14, 15.
[26] Test. of K.
Hellem,
[27] Ex. 2.
[28] Ex. 1.
[29] Test. of
[30] Test. of M.
Hudson.
[31] Notice of and
Order for Hearing dated October 16, 2008; Ex. 2.
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]