Link to Final Agency Decision

 

OAH Docket No. 12-1800-20200-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF HUMAN SERVICES

 

In the Matter of the Temporary Immediate Suspension of the License of Cindy L. Kaumans to Provide Family Child Care

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDATION

 

          This matter was heard by Administrative Law Judge Steve M. Mihalchick on January 20, 2009, at the Todd County Courthouse, Room 2, in Long Prairie, Minnesota.  The Office of Administrative Hearings (OAH) record closed at the end of the hearing on January 20, 2009.

          Charles G. Rasmussen, Todd County Attorney, appeared on behalf of Todd County Social Services (the County) and the Minnesota Department of Human Services (the Department or DHS).

          Cindy L. Kaumans (the Licensee) appeared on her own behalf.

STATEMENT OF THE ISSUES

Should the temporary immediate suspension of Cindy Kaumans’ family child care license remain in effect because there is reasonable cause to believe that there is an imminent risk of harm to the health, safety or rights of children in her care based upon criminal charges involving her minor son?

The Administrative Law Judge has concluded that there is reasonable cause to believe that such an imminent risk of harm exists and that the temporary immediate suspension should be affirmed.

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

FINDINGS OF FACT

1.               Cynthia Kaumans provides licensed family child care in her home in Eagle Bend, Minnesota.  She and her husband, Robert Kaumans, have a 17-year-old son (J.K.) and a 14-year-old daughter.  J.K. will turn 18 on August 1, 2009.[1] 

2.               The Licensee is a good child care provider who has typically met the minimum required licensing standards and has consistently cooperated with County licensing workers.  Parents using the Licensee’s child care have generally been positive in their reports to the County.[2] 

3.               As part of the renewal of the Licensee’s child care license during the summer of 2008, a background check was conducted with respect to members of the Licensee’s household age 13 or older.  In late July 2008, Todd County Licensing Social Worker Marlys Steidl received clearances regarding the background checks for all four members of the Licensee’s household.[3] 

4.               On or about June 2, 2008, the Todd County Sheriff’s Department received reports from twelve individuals in Browerville, Minnesota, indicating that their vehicles had been entered and various items taken.  On June 8, 2008, the Sheriff’s Department received a report that J.K. was involved in entering vehicles and taking various items.  That same day, J.K. admitted in a statement given to police that he had taken a digital camera without permission from a home in Browerville where he had attended a party, but denied any involvement in the theft of items from vehicles.  Another juvenile (J.W.) told the Sheriff’s Department on June 8, 2008, that J.K. was with him when the cars were entered and the items were taken, and J.K. had some of the stolen items.  On September 4, 2008, an adult male who resides in Browerville told the Sheriff’s Department that he saw J.K. and J.W. outside his home in Browerville on the night of the thefts and later learned that some of the items stolen from the vehicles were thrown into his garage.  And, on September 4, 2008, another minor told the Sheriff’s Department that J.K. and J.W. attended a party in Browerville on June 2, and announced that there were leaving to “do stupid stuff around town.”  The individual told the Sheriff’s Department that he found items in the garage the next day that he believed to be stolen, and that J.K. and J.W. admitted to him that they had taken items out of vehicles and split them up between the two of them.[4] 

5.               On July 27, 2008, the Wadena Police Department received a report that J.K. was involved in an altercation with another juvenile (G.G.) in Wadena County.  G.G.’s injuries reportedly included a ruptured left eardrum, resulting in temporary loss of hearing in that ear; a laceration of the outer ear, which required stitches and surgical repair; a concussion; two chipped teeth; and multiple abrasions and bruises.[5] 

6.               During the police investigation of the July 27 incident, G.G. told police that J.K. called him earlier in the day and said that he wanted to meet with G.G.  He indicated that J.K. had been dating K.K., and that K.K. was planning to break up with J.K. and start dating G.G. again.  G.G. indicated that J.K. was upset with him and he believed J.K. wanted to fight him, so G.G. did not want to meet with J.K.  Later, when G.G. was at a skate park in Wadena, J.K. drove up.  As G.G. was walking past J.K. to go to his vehicle, G.G. reported that J.K. punched him in the back of the head and, after G.G. fell to the ground, J.K. jumped on him and punched and kicked him.  G.G. also told police that J.K followed G.G. as he drove to his brother’s home, and that J.K. drove by G.G.’s brother’s home several times while G.G. was there.[6]  According to police records, J.K. stated in an interview that he had asked G.G. to meet him at the skate park because G.G. had yelled at K.K. over the phone and had said that he was going to kill J.K.  J.K. stated that G.G. agreed to meet him at the skate park.  Once there, J.K. reported that they spoke for a few minutes and then G.G. started pushing J.K.  J.K. indicated that he then punched G.G., they went to the ground, J.K. let G.G. up, and they both left the park.  J.K. alleged that he followed G.G.’s vehicle because he thought G.G. was going to go to K.K.’s home and that he quit following G.G. when he saw that G.G. was not going there.[7]  K.K. told police the next day that G.G. had not called her before the fight.  She said that she had broken up with J.K. the night before, and J.K. had called G.G. and said he just wanted to talk with G.G.  K.K. indicated that J.K. told her after the incident that G.G. had turned around because he did not want to fight J.K. and that J.K. punched G.G. in the back of the head and continued to punch and kick G.G. after he fell to the ground.[8] 

7.               On or about October 21, 2008, J.K. was charged by Wadena County with a felony-level violation of Minn. Stat. § 609.223, subd. 1 (third degree assault – substantial bodily harm) and a gross-misdemeanor-level violation of 609.749, subd. 2(a)(2) (harassment – stalk/follow/pursue) in connection with the altercation with G.G.[9]  On October 20, 2008, the Assistant Wadena County Attorney filed a motion requesting that the proceedings involving J.K. be certified to adult court for prosecution under the laws and Court procedures controlling adult criminal violations.[10] 

8.               On or about October 30, 2008, J.K. was charged by Todd County in connection with the Browerville incident.  The charges consisted of one count of felony theft in violation of Minn. Stat. § 609.52, subd. 2(1), and one count of misdemeanor tampering with a motor vehicle in violation of Minn. Stat. § 609.546, subd. 2.[11] 

9.               On November 18, 2008, J.K. entered a guilty plea in Wadena County Court to third degree assault under Minn. Stat. § 609.223, subd. 1, and waived his right to dispute extended juvenile jurisdiction.  Count 2 (the harassment charge) was dismissed.  As conditions of release, the Court ordered that J.K. cooperate with probation, keep in contact with his attorney, attend school regularly, follow home rules, and pay $140.50.  Venue was transferred to Todd County for a dispositional hearing.[12] 

10.           J.K. was allowed to withdraw his guilty plea in the assault matter during the week of January 12, 2009, based at least in part on the fact that an error had been made in the court proceeding concerning J.K.’s age at the time the incident occurred.  The criminal charges against J.K. are still pending, but he will be tried as a juvenile.  The Licensee and Mr. Kaumans acknowledged that J.K did engage in misconduct and they believe that J.K. ultimately will be convicted of some violation of law.[13]

11.           With respect to the theft and tampering charges against J.K., the Todd County Court ordered on November 18, 2008, that J.K. abstain from the use of alcohol/drugs unless prescribed by a licensed physician, submit to random drug testing, follow all rules of conduct, and remain law-abiding.  He was placed on house arrest with several conditions:  he was allowed to attend school and basketball practice, but required thereafter to return home; he was not otherwise allowed to leave home unless in the presence of one or both parents; he was not permitted to have friends come to his home unless approved by his parents; and he was required to attend all court hearings.  The Court later modified the house arrest conditions to permit J.K. to attend counseling sessions in Long Prairie without a parent accompanying him.[14]  There has not yet been any disposition with respect to these charges.[15]

12.           The Licensee told Ms. Steidl in November 2008 that the Kaumans were having some difficulty with their son, but did not report to Ms. Steidl that criminal charges had been filed involving her son.[16] 

13.           Ms. Steidl learned in December 2008 that J.K. had had some criminal involvement and had been placed on house arrest in the Licensee’s home.  When she conducted further investigation, she discovered the Wadena County assault charges and the Todd County theft charges.[17]

14.           After reviewing the criminal records and consulting with her supervisor and the Todd County Attorney’s Office, Ms. Steidl submitted a letter to the State Department of Human Services on December 22, 2008, recommending that the Department issue an order of temporary immediate suspension with respect to the Licensee’s child care license.  In the letter, Ms. Steidl noted that the criminal charges constituted a disqualification for a household member living in a licensed home, and stated that the County “is very concerned about the access to the children that [J.K.] has which is now increased due to the house arrest. . . .  [T]he victim [of the assault] suffered significant injuries and Todd County feels the children present in the licensed childcare home are at imminent risk.”[18]

15.           The Department of Human Services issued an Order of Temporary Immediate Suspension regarding the Licensee’s license on December 22, 2008.  The letter informed the Licensee of her right to appeal the Order.  Ms. Steidl served the Order on the Licensee on December 23, 2008.[19]

16.           The Licensee filed a timely appeal of the Order of Temporary Immediate Suspension,[20] resulting in the initiation of this proceeding.

17.           On December 29, 2008, the Notice of and Order for Hearing was served by mail on the Licensee setting the hearing to take place on January 20, 2009.  The hearing occurred as scheduled.

18.           The Administrative Law Judge issued a Protective Order in this matter on January 5, 2009.

19.           The Licensee’s day care hours extend from 5:30 a.m. at the earliest to 5:45 p.m. at the latest.  After he gets up in the morning, J.K. generally spends approximately 15 minutes at home before leaving for school.  Due to sports activities, J.K. typically does not return home until approximately 6:30 p.m.[21]

Based on these 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 pursuant to Minn. Stat. § 14.50 and 245A.07, subds. 2 and 2a.

2.           The Department, through Todd 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.”[22]

6.           Minn. Stat. § 245C.03 requires that background studies be conducted on individuals age 13 and over living in the household where the licensed program will be provided.

7.           Under Minn. Stat. § 245C.14, the Commissioner must disqualify individuals who are the subject of a background study from any position allowing direct contact with persons receiving services from the license holder upon receipt of information showing “a preponderance of the evidence indicates the individual has committed an act or acts that meet the definition of any of the crimes listed in” Minn. Stat. § 245C.15.  Under the latter statutory provision, an individual who commits assault in the third degree in violation of Minn. Stat. § 609.223 or theft in violation of Minn. Stat. § 609.52 is disqualified for 15, 10, or 7 years depending upon whether the violation was a felony-level, gross-misdemeanor-level, or misdemeanor-level violation.  

8.           The Department has demonstrated that there is reasonable cause to believe that the actions of the Licensee’s minor child pose an imminent risk of harm to the health, safety, or rights of the children served by the Licensee’s child care program.

9.               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:

 

RECOMMENDATION

          IT IS RECOMMENDED that the Order of Temporary Immediate Suspension issued by the Commissioner of Human Services with respect to the family child care license of Cindy L. Kaumans be AFFIRMED and should remain in effect pending the Commissioner’s final order under Minn. Stat. § 245A.07, subd. 3.

Dated:  February 2, 2009

 

 

/s/ Steve M. Mihalchick

STEVE M. MIHALCHICK

Administrative Law Judge

 

Reported:  Digitally Recorded

 

NOTICE

          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, P.O. Box 64998, St. Paul, MN 55164-0998, (651) 296-2701, 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

In a hearing regarding a Temporary Immediate Suspension, the Commissioner has the burden of showing that there is reasonable cause to believe that the license holder's actions or failure to comply with applicable law or rule, or the actions of other individuals or conditions in the program, pose an imminent risk of harm to the health, safety, or rights of persons served by the program.[23]  Although “reasonable cause” is not specifically defined in the statute, it is analogous to the burden and standard for establishing probable cause in a criminal proceeding.[24]  At this stage of the proceedings, the Department does not need to conclusively establish that all of the factual allegations upon which it relied in support of the Order of Temporary Immediate Suspension actually occurred.  The reasonable cause burden is modest, presumably to ensure that vulnerable children are protected until there can be a full hearing and final determination of any possible licensing sanction under Minn. Stat. § 245A.08.  If the Department decides to impose a final licensing sanction, a license holder has the right to a full evidentiary hearing, and the question of whether the facts alleged by the Department occurred may be fully explored in the context of that hearing.

The Department acknowledged that the Licensee has been a good child care provider in the past and is regarded highly by parents of children in her care.  The sole issue in this case is whether the Licensee’s minor son poses an imminent risk of harm to the health, safety, or rights of the children served by her child care.  The case put forth by the County on behalf of the Department was brief and relied almost completely on the criminal complaints and investigative reports relating to allegations of criminal conduct by J.K. during the summer of 2008.  Based upon those criminal charges, the Department believes that there is reasonable cause to believe that J.K. poses an imminent risk of harm to the health, safety, and rights of the children served by the program.  

          The Administrative Law Judge understands that this is a difficult situation for the Licensee and her family.  There is no evidence that J.K. has engaged in violent behavior in his home or community before July 2008, or that he has ever harmed a daycare child.  However, the allegations relating to J.K.’s altercation with another juvenile last summer and the victim’s resulting injuries raise reasonable and serious concerns about J.K.’s temper, self-control, and propensity for physical violence.  The claims by the alleged victim about the events that transpired were largely consistent with admissions that J.K. allegedly made to a friend shortly after the incident, and the Licensee and her husband did not dispute the factual allegations or the likelihood of an ultimate conviction of some type. 

It appears that J.K.’s exposure to child care children is minimal at the present time and his parents would be willing to try to restrict his presence in the home during day care hours to an even greater extent.  However, the fact remains that J.K. is a minor who not only lives in the household but also has been placed under house arrest.  For that reason, it is unlikely that he could be precluded from being in the home during day care hours. 

Accordingly, the Administrative Law Judge finds that there is reasonable cause to believe that J.K. poses 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] Testimony of Marlys Steidl, Cindy Kaumans, and Bob Kaumans; Dec. 29, 2008, Summary attached to Notice of Hearing.

[2] Testimony of M. Steidl; Dec. 29, 2008, Summary (attached to Notice of Hearing).

[3] Testimony of M. Steidl; Dec. 29, 2008, Summary (attached to Notice of Hearing); Dec. 19, 2008, Letter from Ms. Steidl to DHS (attached to Notice of Hearing).  Minn. Stat. § 245C.03, subd. 1(a)(2) requires that the Commissioner of Human Services conduct a background study on “an individual age 13 and over living in the household where the licensed program will be provided.”

[4] Todd County Juvenile Petition (Ex. 1 at 13-15).

[5] Wadena County Juvenile Petition (Ex. 1 at 1-3); Wadena Police Department Incident Report (Ex. 1 at 16-17); Wadena Police Department Case Report (Ex. 1 at 18); Picture of G.G.’s injuries (Ex. 1 at 6).

[6] Wadena Police Department Case Report (Ex. 1 at 18).

[7] Wadena Police Department Case Report (Ex. 1 at 18-19).

[8] Wadena Police Department Case Report (Ex. 1 at 20).

[9] Wadena County Juvenile Petition (Ex. 1 at 1-3).

[10] Motion for Certification and Notice of Intent to Prosecute (Ex. 1 at 4-5).

[11] Todd County Juvenile Petition (Ex. 1 at 13-15).

[12] Nov. 18, 2008, Findings and Order - Delinquency and Order for Transfer of Venue entered by Wadena County District Court (Ex. 1 at 7-8)

[13] Testimony of Bob Kaumans and Licensee.

[14] See Nov. 18, 2008, and Dec. 8, 2008, Orders entered by Todd County District Court (Ex. 1 at 9-12).

[15] Dec. 29, 2008, Summary (attached to Notice of Hearing).

[16] Testimony of M. Steidl; Dec. 29, 2008, Summary (attached to Notice of Hearing).

[17] Testimony of M. Steidl; Dec. 29, 2008, Summary (attached to Notice of Hearing).

[18] Testimony of M. Steidl; Dec. 19, 2008 Letter to Commissioner of DHS from Ms. Steidl (attached to Notice of and Order for Hearing).

[19] Testimony of M. Steidl; Order of Temporary Immediate Suspension (attached to Notice of Hearing).

[20] December 29, 2008, Summary (attached to Notice of Hearing).

[21] Testimony of Licensee.

[22] Minn. Stat. § 245A.07, subd. 2a(a).

[23] Minn. Stat. § 245A.07, subd. 2a(a).

[24] See, e.g., State v. Florence, 239 N.W.2d 892, 897, 903-04 (Minn. 1976).