3-1800-20276-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
In the Matter of the Temporary Immediate FINDINGS OF FACT,
Suspension of the Child Foster Care CONCLUSIONS,
AND
License of Pen Standifer RECOMMENDATION
This matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy at 9:30 a.m. on March 10, 2009, at the Office of Administrative Hearings. The OAH record closed at the conclusion of the hearing that day.
Michael Q. Lynch, Assistant County Attorney, 525 Portland Avenue South, 12th Floor, Minneapolis, MN 55415, appeared on behalf of the Department of Human Services (Department) and Hennepin County Human Services and Public Health Department (County).
Kassius
O. Benson, Attorney at Law,
STATEMENT OF ISSUE
Should the temporary immediate suspension of the child foster care license remain in effect because there is reasonable cause to believe there is an imminent risk of harm to the health, safety or rights of children in the license holder's care?
The Administrative Law Judge concludes the temporary immediate suspension of the license should remain in effect pending the Commissioner’s final order regarding a licensing sanction.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Pen Standifer has been a licensed
provider of child foster care in
2. In 2005 or 2006, a 15-year-old foster child named S.R. reported that the Licensee had, on one occasion, smoked marijuana with him until S.R. fell asleep. When he awoke, S.R. found that the Licensee had lain down next to him, unbuckled S.R.’s pants, and was touching S.R.’s genitals. Law enforcement and child protection authorities investigated the report and concluded it was not credible. The law enforcement community had had numerous previous contacts with S.R., in which S.R. had been untruthful. No criminal charges were filed, and no maltreatment was found. No adverse licensing action was taken against the Licensee.[2]
3. A.F. is a 15-year-old boy who was placed
in the Licensee’s foster home in November 2008.
A.F. was the subject of a child protection investigation involving his
13-year-old sister, who had recently alleged that A.F. had sexual contact with
her many years ago. On December 29,
2008, a
4. On the afternoon of December 30, 2009, A.F. called his mother and reported that the Licensee had sexually abused him. A.F. left the Licensee’s home and went to a nearby gas station, where he called the police and said he had been assaulted. When interviewed by investigators, A.F. alleged that on the previous Sunday, December 28, 2009, he returned to the foster home around midnight. He said the Licensee called him into the Licensee’s bedroom, where the Licensee smoked marijuana with A.F. and began to massage A.F. using lotions on the nightstand. A.F. said that eventually, the Licensee removed all of A.F.’s clothing and performed oral sex on A.F.[4]
5. When police questioned the Licensee on December 30, 2008, the Licensee denied that he had touched A.F. inappropriately.[5]
6. The police interviewed A.F. again on January 2, 2009. In this interview, A.F. provided a more detailed statement, in which he maintained in addition that for several weeks he and the Licensee had smoked marijuana together every night and that the Licensee kept quantities of marijuana in the master bathroom and in a box under his bed. A.F. also said that immediately before he had called the police, the Licensee had given him money to buy marijuana.[6]
7. On January 6, 2009, the Licensee was arrested and a search warrant was executed at his home. In the master bathroom, police found zip lock baggies containing marijuana and blunt wraps. In the bedroom, they found a box with marijuana residue and zip lock bags. They also found lotions and creams on the nightstand next to the bed. In the basement, they found part of a brick of marijuana, as well as sexual devices and X-rated videos.[7] The seized marijuana weighed 140 grams, or about one third of a pound.
8. After this date, the police interviewed several former foster children who had stayed in the Licensee’s home. Some confirmed that they had seen and smelled marijuana in the home.[8]
9. Police re-interviewed S.R., who was serving a criminal sentence at the Red Wing Correctional Facility. S.R. repeated the allegation that the Licensee had unbuckled S.R.’s pants and put his hand on S.R.’s genitals. He also said that the Licensee had large amounts of marijuana in the house and that the Licensee sold marijuana from the home. He said he and his brother J.R. had smoked marijuana with the Licensee frequently.[9]
10. The police also interviewed S.R.’s brother, J.R. J.R. said that on one occasion in 2005 or 2006, the Licensee gave him alcohol and marijuana, after which J.R. fell asleep. When he awoke, he said the Licensee had his hand inside J.R.’s pants.[10]
11. On February 2, 2009, the Licensee was charged with first-degree criminal sexual conduct with regard to A.F. and second- and fourth-degree criminal sexual conduct with regard to S.R.[11]
12.
13. The Department issued an order of temporary immediate suspension on February 6, 2009.[13] The Licensee timely requested a hearing, and the Department requested assignment of an Administrative Law Judge on February 18, 2009.
CONCLUSIONS OF LAW
1. The Commissioner of Human Services and the Office of Administrative Hearings have jurisdiction to consider this matter pursuant to Minn. Stat. §§ 245A.07, subd. 2a and 14.50 (2008).
2. If a 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, the Commissioner shall act immediately to temporarily suspend the license.[14]
3. If a license holder appeals an order immediately suspending a license, the Commissioner shall request assignment of an administrative law judge within five working days of receipt of the license holder’s timely appeal. A hearing must be conducted within 30 calendar days of the request for assignment.[15]
4. In scheduling the hearing the Commissioner has complied with all procedural requirements of rule or law.
5. The scope of the hearing shall be limited solely to the issue of whether the temporary immediate suspension should remain in effect pending the commissioner's final order under § 245A.08, regarding a licensing sanction issued under subdivision 3, following the immediate suspension. The burden of proof in expedited hearings shall be 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.[16]
7. The Commissioner demonstrated reasonable cause to believe that the license holder’s actions pose an imminent risk of harm to the rights of persons served by the child foster care program. The order of temporary immediate suspension should remain in effect pending a final order regarding a licensing sanction.
8. The Memorandum attached hereto is incorporated herein by reference.
Based upon the foregoing Conclusions of Law, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the Commissioner of Human Services continue the temporary immediate suspension of Pen Standifer’s child foster care license.
Dated: March 17, 2009
__s/Kathleen D. Sheehy______
KATHLEEN D. SHEEHY
Administrative Law Judge
Reported: Digitally recorded (no transcript prepared)
NOTICE
This Report is a recommendation, not a final decision. The Commissioner of Human Services will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. The parties have ten calendar days to file exceptions to this Report.[17] The Commissioner's final order shall be issued within ten working days from receipt of the administrative law judge's recommendation.[18] The Commissioner’s final order shall be issued within ten working days from the close of the record.[19]
Pursuant to Minn. Stat. § 14.62, subd. 1 (2008), the Commissioner is required to serve the final decision upon each party and the Administrative Law Judge by first-class mail.
MEMORANDUM
The Commissioner is not required to prove in this proceeding that the Licensee abused anyone. 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 poses an imminent risk of harm to the health, safety, or rights of persons served by the program. This is a modest standard, intended 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.
Reasonable cause to suspend a license is not specifically defined in the statute, but is analogous to the probable cause standard in a criminal proceeding.[20] The judge’s function at this stage of the process is not to assess the credibility of conflicting testimony, but to determine whether there is enough evidence to proceed.
The Licensee argued that the order of temporary immediate suspension is not necessary, despite the gravity of the charges against him, because the County removed A.F. from his home and will not place any foster children with him while the criminal action is pending. Moreover, the district court has precluded the Licensee, as a condition of his release, from accepting any children for placement in his home. The Licensee vigorously challenges the credibility of the complaints made against him, and he maintains that those determinations should properly be made in the course of the criminal trial, not in a licensing proceeding.
The County maintains that the suspension order should be continued because the Commissioner is entitled to take licensing action under the circumstances of this case, regardless of what happens in the criminal case. In addition, the County contends the suspension order is necessary, despite the County’s control over child foster care placements, because occasionally social workers or corrections officers place children in foster homes without checking first with licensing workers to ensure there are no licensing concerns. The existence of a suspension order is entered in the licensing database and is publicly available.
The Human Services Licensing Act requires the Commissioner to issue an order of temporary immediate suspension if a license holder’s actions or conditions in the program pose an imminent risk of harm to the health, safety, or rights of persons served by the program. [21] Here, the Commissioner has sufficient reason to believe that the Licensee’s actions pose a risk of harm to foster children. Three teenagers placed in his care have alleged that he gave them marijuana and sexually abused them. There are credibility issues concerning each of the allegations of sexual abuse, but the claims were corroborated in part by the marijuana found throughout the home, including the locations described by A.F. and other foster children. There is sufficient evidence in the record to demonstrate that the suspension order should remain in effect until there can be a full hearing and final determination of any possible licensing sanction under Minn. Stat. § 245A.08.[22]
K.D.S.
[1] Ex. 33.
[2] Testimony of Det. Daniel Drake; Testimony of Ron Wetzell.
[3] Ex. 6 (Child Protection case notes) at 2 of 13; Ex. 7.
[4] Exs.2 & 3; Ex. 5.
[5] Ex. 4.
[6] Ex. 9.
[7] Ex. 15.
[8] Ex. 17; Ex. 26; Ex. 30.
[9] Ex. 21.
[10] Ex. 25.
[11] Ex. 29.
[12] Ex. 33.
[13] Ex. 34.
[14] Minn. Stat. § 245A.07, subd. 2
[15] Minn. Stat. § 245A.07, subd. 2a(a).
[16]
[17]
[18] Minn. Stat. § 245A.07, subd. 2a(b).
[19]
[20]
[21] Minn. Stat. § 245A.07, subd. 2
[22]
The Commissioner is required to make a determination regarding a “final
licensing sanction” within 90 calendar days.
See