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7-1800-21127-2127-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Family Child Care License of Rebecca Upegui |
FINDINGS OF FACT, CONCLUSIONS, RECOMMENDATION AND MEMORANDUM |
This matter was heard by Administrative Law Judge Richard C. Luis on
Thursday, March 18, 2010, at the
Anne L. Mohaupt, Assistant Wright County Attorney, appeared on behalf of the Wright County Family Services Department (Local Agency) and Minnesota Department of Human Services (Department). Rebecca Upegui (Licensee) appeared on her own behalf, without counsel.
1. Whether the disqualification of the Licensee’s daughter, V.U., from providing direct contact services to persons in the Licensee’s family child care program should be dismissed or set aside; and
2. If the disqualification against V.U. is set aside, whether the Order of Revocation against the Family Child Care License of Rebecca Upegui should be rescinded?
Based on all the proceedings herein, the Administrative Law Judge makes the following:
1. Pursuant to an Order of the Commissioner of Human Services, issued on March 9, 2010, this is a consolidated appeal, and the Administrative Law Judge heard evidence regarding whether the disqualification of V.U. should be rescinded or set aside, as well as evidence relating to the Licensee’s appeal from the Order of Revocation issued January 12, 2010.
2. The Local Agency and the Department stipulate that the other violations listed in the January 12, 2010 Order of Revocation against Ms. Upegui’s license have been corrected, or are no longer at issue in this proceeding, and that the only matter currently material to this proceeding is whether or not the disqualification against V.U. should be rescinded or set aside.
3. On August 15, 2008, V.U., who was just over 17 years old at the time, became engaged in a heated argument with her female friend, B.R., another juvenile, at the “Daze and Knights” Festival in St. Michael.[1] The dispute culminated when V.U. punched B.R. in the mouth, causing some minor bleeding and a swollen lower lip.[2]
4. B.R. and her mother decided to press charges against V.U. as a result of the incident described in the preceding Finding. V.U. was arrested and charged with violation of Minn. Stat. § 609.224, Misdemeanor Fifth Degree Assault. On October 21, 2008, V.U., pursuant to a plea arrangement, was adjudicated on a charge of disorderly conduct, and placed on probation for one year. V.U. served her period of probation satisfactorily, and she was discharged from probation on October 21, 2009.[3]
5. As a result of the August 15, 2008 incident, V.U., who lived then with the Licensee and helped with the daycare, was disqualified from direct contact with her mother’s daycare children. V.U. requested reconsideration, which was denied.[4]
6. As a result of the disqualification against V.U., the Licensee’s family child care license was revoked on January 12, 2010, in part because the Local Agency and the Department understood V.U. still was in direct contact with, or had access to, persons served by Rebecca Upegui’s family child care program.[5]
7.
V.U., who became a full-time student at
8. Considering the nature, severity and consequences of the event that led to V.U.’s disqualification, the minimal harm suffered by the victim, the lack of similarity between the victim and persons served by the Licensee’s program, the fact that there has been no repetition of a similar event since the occasion leading to V.U.’s arrest, and the fact that V.U. will be in contact with persons served by her mother’s program only occasionally, V.U. does not pose a risk of harm[7] to persons served by the family child care program of Rebecca Upegui.
Based on the Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Commissioner of Human Services have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 245A.07, and pursuant to the Commissioner’s Order dismissing the internal appeal of V.U.’s disqualification, transferring that matter from an appeal before the Department’s Human Services Judge to this contested case proceeding.
2. The Notice of Hearing was proper and the Department has satisfied all procedural requirements.
3. Any individual who has committed a misdemeanor violation of Minn. Stat. § 609.224 (Assault in the Fifth Degree) is disqualified from direct contact from persons receiving services from a license holder for family child care services for a period of seven years. While V.U. was not adjudicated for violation of Minn. Stat. § 609.224, the preponderance of the evidence shows that she did commit an assault against B.R. in violation of that statute.
4. The Licensee has established by a preponderance of the evidence that it is appropriate to set aside the disqualification because contact by V.U. with persons served by the Licensee’s program does not present a risk of harm to daycare children.
5. It is appropriate to rescind the Order of Revocation of the family child care license of Rebecca Upegui.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the disqualification of V.U. from direct contact with recipients of the Licensee’s family child care program be SET ASIDE, and that the ORDER OF REVOCATION issued against the family child care license of Rebecca Upegui on January 12, 2010 be RESCINDED.
Dated: April 7, 2010
s/Richard C. Luis
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RICHARD C. LUIS Administrative Law Judge |
Reported: Digitally Recorded
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. 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 90 days to issue his final decision. If no decision is made by the Commissioner by
the end of those 90 days, this Report will become the final order of the
Department. Parties should contact Cal Ludeman, Commissioner
of the Minnesota Department 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.
R. C. L.