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OAH 15-1800-21321-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Temporary Immediate Suspension of the License of Sandra Julkowski |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
A hearing was held on July 7, 2010, at
Room 564,
The hearing was originally scheduled for June 7, 2010, but was rescheduled for July 7, 2010, at the request of Ms. Julkowski, and the agreement of the Department.
The purpose of the hearing was to consider whether the Temporary Immediate Suspension of Ms. Julkowski’s license to provide child care should be continued.
The hearing record closed at the completion of the hearing on July 7, 2010.
Appearances: Francine P. Mocchi, Assistant Anoka County Attorney, appeared on behalf of Anoka County Human Services and the Minnesota Department of Human Services. Sandra Julkowski (Licensee) appeared on her own behalf.
Do the Licensee’s actions or failure to comply with applicable law or rule pose an imminent risk of harm to the health, safety or rights of persons served by the child care program?
The Administrative Law Judge concludes that the Licensee’s actions pose an imminent risk of harm to the health, safety or rights of the children in her care and recommends that the Order of Temporary Immediate Suspension be affirmed.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Sandra Julkowski (Licensee) has held a license
to provide child care in
2.
The Licensee lives with four of her children in her
home in
3. On December 28, 2009, the Licensee became involved in an argument with her boyfriend, Dean Page, who lived with the Licensee at that time. The Licensee called the police at 6:25 p.m., but when the police arrived, she met the police in the street and asked them to leave. When Page came outside, the Licensee and Page began to argue, and Page admitted to the police that he had pulled the Licensee’s hair. Page told the police that the Licensee was an alcoholic and had frequently driven when she had been drinking, with her own children and the daycare children in the car. Both the Licensee and Page confirmed that the Licensee wanted to cancel the police call after Page had told the Licensee that he intended to call child care licensing to report her drinking.[2]
4. Although Page was relatively calm during the police call, the Licensee interrupted and attempted to provoke Page. Page agreed to leave for awhile so both parties could calm down.[3]
5. On December 29, 2009, the Anoka County Child Care Licensing staff received a copy of the police report.[4] On December 30, 2009, Maria Dierks and Sarah Mathias, two members of the county child care licensing staff, made an unannounced visit to the Licensee’s home. One pre-school child was in care that day. Dean Page and one of the Licensee’s children were present. The Licensee answered questions about the police call and denied that she had alcohol in her home or that she had been drinking. She denied having any issues with chemical dependency and denied that she had driven children when she had been drinking.[5]
6. The licensing staff looked around the Licensee’s home and did not find any alcohol. The Licensee stated that, although Page was ordinarily at her home only on weekends, she had mailed in a background study form for him, but she was not concerned that it would disclose anything negative.[6]
7. No action was taken against Licensee’s license at that time.
8. As of December 31, 2009, the county had not received a background study form for Page.[7] However, at some point the background study form was received and on February 25, 2010, Page and the Licensee were notified that Page was disqualified from contact with the children in care.[8]
9. On March 9, 2010, Lori Onstad, another licensing worker, visited the Licensee’s home. There is no evidence that any problems were identified.[9]
10. On March 15, 2010, Anoka County Child Care Licensing staff received a call reporting that the Licensee was drinking during the day when children were in care. Although the caller had not seen any alcohol, he believed that the Licensee occasionally “talks weird,” by which he meant that she jumped from topic to topic. He had been concerned about the Licensee’s drinking for about eight months and was aware that the Licensee’s boyfriend (Page) was concerned about the Licensee drinking and driving with children in her car.[10]
11. Ms. Dierks and Ms. Mathias conducted an unannounced visit to the Licensee’s home on March 17, 2010. Five children were in care, including an infant for whom it was the first day in the Licensee’s care. The licensing workers told the Licensee that they had received another complaint about her drinking. The Licensee claimed that the last time she had been out for a drink was about three weeks previous.[11]
12. The Licensee surmised that Dean Page had complained about her. She stated that he had not been at her home since March 12, 2010, and that she was aware that he had been disqualified and had requested reconsideration of the disqualification. They were no longer on good terms and she had given him notice as a “renter” that he had to move out of the home. She believed that Page wanted to “bring her down.”[12]
13. When asked if she had ever been told that she had a drinking problem, the Licensee acknowledged that Page felt that she did, and that he had called her parents about it. She stated that she had attended two AA meetings the previous summer to support a friend, but she denied having a drinking problem and stated that her parents didn’t know what to believe.[13]
14. The Licensee willingly agreed to allow the licensing workers to look around the home. They looked in several places in the home and garbage but did not find any evidence of alcohol.[14] The Licensee agreed that she would submit to a urine screen and a chemical dependency evaluation if it would help clear up the allegations about her drinking.[15]
15. The Licensee had not completed SIDS/Shaken Baby training and did not have a proper crib for the infant. The Licensee was given a Correction Order for the two associated rule violations and a written memo directing the Licensee to collect some missing paperwork for the children in care.[16]
16. The licensing workers concluded that the investigation of the Licensee’s drinking should continue.[17] A urinalysis was arranged; the Licensee agreed to have the test on March 19, 2010. The test results were inconclusive because testing was completed for narcotics but not for alcohol.[18]
17. On March 22, 2010, Page called the county to inquire about his request for reconsideration of his disqualification and also spoke about his concerns about the Licensee’s drinking. The worker who took the call, Nancy Sackett, aware of Ms. Mathias’s plan to call Page for information, asked him additional questions about his concerns. Page stated that the Licensee was an alcoholic who frequently drank when the children were present, that she was a closet drinker of vodka, and that the drinking did affect her speech and balance. He provided a log of dates he believed she had been drinking and described places in the home where she hid alcohol. Page also stated that he had called the police the prior evening about the Licensee’s drinking. Also, since he was moving out of the home, he was concerned about the children’s safety.[19] No police report was provided.
18. The licensing staff interviewed some of the parents who had children in care, but none expressed any reservations about the Licensee’s behavior.[20]
19. On April 8, 2010, Ms. Dierks and Ms. Mathias conducted an unannounced visit of the Licensee’s home. During the visit, they thoroughly checked the locations where Page had stated the Licensee hid alcohol. The Licensee fully cooperated and no evidence of alcohol use was found. The Licensee acknowledged that Page had called the police a few weeks ago, prior to moving out, but there was no police action. She stated that she and Page were “friends” and spoke on the telephone nearly every day, but that their relationship had ended.
20. Ms. Mathias told the Licensee that she would be recommending that the Department issue a conditional license based on the violations included on the Correction Order, and she asked the Licensee if she would agree to a chemical dependency evaluation. The Licensee agreed, and did not seem concerned about the licensors’ visit or the possible conditional license. There were no violations noted during the visit.[21]
21. On April 23, 2010, Ms. Mathias left a voice mail message for the Licensee, asking if the chemical dependency evaluation had been scheduled.[22]
22. On May 4, 2010, the Coon Rapids Police Department received an anonymous call at 2:49 p.m. that the Licensee was operating a licensed daycare and sounded intoxicated on the telephone. Officer William Steiner went to the Licensee’s home. Two of the Licensee’s children and five daycare children were present. Officer Steiner smelled the odor of alcohol on the Licensee’s breath. When asked if she had been drinking, the Licensee stated that she hadn’t had any alcohol for approximately two days. She acknowledged that she was licensed by the county to provide child care. Upon request, the Licensee agreed to take a breath test.[23]
23. While Officer Steiner was setting up the breath test equipment (PBT), the Licensee was visibly anxious, and she admitted that she was very nervous. She blew into the PBT, and the result was a .162 alcohol concentration. Officer Steiner noted that the Licensee seemed shocked by the results, and he offered to readminister the test. While he was resetting the equipment, the Licensee stated that another test was not necessary.[24]
24. A person who tests at .162 alcohol concentration significantly exceeds the legal limit for driving of .08. Based on his experience and training, Officer Steiner offered his opinion that at .162 alcohol concentration, judgment, motor skills and reaction time would be impaired.[25]
25. The Licensee gave Officer Steiner contact information for the parents of each child in care, and the officer waited at the home until all of the children were picked up.[26] Officer Steiner contacted Anoka County Child Protection and forwarded a copy of his report to that office and to the county licensing staff.[27]
26. Later the same day, the county sent a letter to the Department of Human Services requesting a Temporary Immediate Suspension of the Licensee’s license, based on the reports received on December 29, 2009, and March 15, 2010, and the police report and breath-test results on May 4, 2010.[28]
27. The Department issued an Order of Temporary Immediate Suspension on May 4, 2010. The county immediately served the order on the Licensee and notified the families of the children in care.[29]
28. By letter of May 8, 2010, the Licensee requested a hearing to appeal the Order of Temporary Immediate Suspension. In the letter, she admitted that she had a drink with a friend who dropped over on May 4, 2010, and she apologized for her poor judgment. She also stated in the letter that she believed that Jon Emerson, the father of her daughters, had made the call to the police and that he did it to get back at her because of a disagreement about visitation with the children. She reiterated that she rarely drinks, and that she had made a mistake by having a drink to celebrate her friend’s birthday. Also, she emphasized that no parents of children in care had complained, and that she had never failed to properly care for the children nor had she compromised their safety.[30]
29.
On May 11, 2010, Jodi Nelson, county child
protection worker, and Ms. Mathias interviewed the Licensee at her home.[31] During the interview the Licensee offered a
different explanation about her drinking on May 4. She stated that she had a disagreement with
Emerson about switching the evening of his visitation so that she could take
her daughters to a birthday party in
30. The Licensee acknowledged that she planned to have a chemical dependency assessment but had not scheduled one at that time, and she alluded to the pain medications she was taking.[33]
31. During the interview, the Licensee was asked to explain why the description of the events of May 4 in her appeal letter differed from the version of events given in the interview. She replied that a friend helped her write her appeal letter, that it had been done quickly, and she just wanted to get it filed.[34] Later in the interview, the Licensee mentioned that a friend had been at her home on May 4, and under further questioning, admitted that the friend had brought a bottle of alcohol, but that the Licensee had not opened it.[35]
32. When questioned further about the details of her drinking on May 4, she stated that she had taken a bottle of vodka from a closet in her bedroom, fixed her drinks in the bathroom, and drank them quickly.[36]
33. During the interview, the Licensee represented that the parents of the children in care were well aware of the circumstances surrounding the Temporary Immediate Suspension.[37]
34. The Licensee submitted letters from the grandparents and mother of a child in care, expressing their support for the Licensee. However, none of the letters reflect that the adults were aware of the results of the Licensee’s breath test. Instead, the letter writers appear to believe that the license suspension flowed from vindictive complaints made to the county by the Licensee’s former boyfriends and, that because the Licensee worked alone, she was vulnerable to false complaints. One of the letters repeats the Licensee’s explanation in her appeal letter that she had shared a social drink with a friend on May 4.[38]
35. On May 12, 2010, the Licensee left a message for Ms. Mathias that the chemical dependency evaluation had been scheduled for May 24, 2010.[39]
36. The chemical dependency “Rule 25 Assessment” was completed by Edwin Maki on May 24, 2010.[40] Mr. Maki determined that the Licensee met the DSM IV Criteria for diagnosis of 305.01, Alcohol Abuse Continuous, and recommended that she enter and complete an outpatient substance abuse treatment program.[41]
37.
In June, the Licensee began attending a
five-week outpatient chemical dependency treatment program at
38.
On July 3, 2010, the
39. The Licensee admitted that she was at a pool party, but denied that she had been drinking or that Page had been present. She stated that she had ended her relationship with Page over Memorial Day weekend, that he had been at her home on July 3 to pick up his belongings, but that she had not been there while he was.[44]
40. The hearing on the Licensee’s appeal of the Temporary Immediate Suspension was originally scheduled for June 7, 2010. On Thursday, June 3, 2010, the Licensee requested a continuance of her hearing. At that time, the Licensee stated that she had just learned that she was scheduled to have surgery on her back on June 7, 2010, and since her back was bothering her, she did not want to postpone the surgery. With the consent of the assistant county attorney, the hearing was postponed to July 7, 2010.[45]
41. At the hearing, the Licensee admitted that she had not had back surgery, but that she had been planning to have it, and that she did have a number of doctor appointments. She stated that she had requested the continuance because she was not prepared and was afraid of the proceeding.[46]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Commissioner of Human Services and the Administrative Law Judge have jurisdiction to consider the appeal of the Temporary Immediate Suspension.[47]
2.
The Department through
3. The Commissioner shall act immediately to temporarily suspend a license 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.”[48]
4. At a hearing appealing an Order of Temporary Immediate Suspension, the burden of proof is on the Department to demonstrate 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.”[49]
5. “Reasonable cause” means that “there exist specific articulable facts or circumstances which provide the commissioner with a reasonable suspicion that there is an imminent risk of harm to the health, safety or rights of persons served by the program.”[50] The Department may demonstrate reasonable cause by submitting statements, report or affidavits to substantiate the allegations.[51]
6. The Administrative Law Judge shall determine “whether the immediate suspension should remain in effect pending the Commissioner’s final order regarding a final licensing sanction.”[52]
7. The Department demonstrated that there is reasonable cause to believe that the Licensee’s use of alcohol places the children in her care at imminent risk of harm to their health and safety.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge recommends that the Order of Temporary Immediate Suspension of the Licensee’s family child care license be AFFIRMED.
Dated: July 13, 2010
s/Beverly Jones Heydinger
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BEVERLY JONES HEYDINGER Administrative Law Judge |
Reported: Digitally Recorded
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.
The Department has the burden of showing that there is reasonable cause to believe that an action by the license holder or the actions of other individuals pose an imminent risk of harm to the health, safety, or rights of persons in care. In the context of the applicable statute, “reasonable cause” means that “there exist specific articulable facts or circumstances which provide the commissioner with a reasonable suspicion that there is an imminent risk of harm to the health, safety or rights of persons served by the program.”[53] This is a modest standard, intended to assure that vulnerable children are protected until there can be a full hearing and final determination.
The Department may demonstrate reasonable cause by submitting statements, reports or affidavits to substantiate the allegations.[54]
There is an adequate showing of reasonable cause if there is a reasonable belief based on articulable facts that is stronger than a mere suspicion. In In the Matter of the Temporary Immediate Suspension of the Family Child Care License of Strecker, the Court of Appeals stated that, in applying the statutory standard of “reasonable cause” set forth in Minn. Stat. § 245A.07, subd, 2, the Department must show that “the circumstances are sufficient to warrant a cautious person to reasonably believe that the [Licensee] posed an imminent risk of harm to the health or safety of her daycare children.”[55]
In the subsequent legislative session, the language of the statute was amended to add the statutory definition of “reasonable cause” quoted above. Thus, with the statutory amendment, the Department must show that there are articulable facts upon which a reasonable person would suspect that the Licensee poses an imminent risk of harm to the health or safety of her daycare children. In making that determination, the administrative law judge must weigh conflicting evidence.
The Administrative Law Judge must also determine if the evidence shows that the license holder’s actions continue to pose an imminent risk of harm at the time of the hearing to the persons served so that the suspension should continue pending final determination of any appropriate licensing sanction.[56]
In this case, the County demonstrated reasonable cause to be concerned that the Licensee was drinking alcohol in excess of legal limits for driving, which would adversely affect the health and safety of the children receiving care. Since that time, the investigation has continued, and the evidence shows that there is reasonable cause to believe that the Licensee may still pose a risk of harm to the children in care. The men with whom the Licensee has been in prior relationships may be motivated to file false reports against her. However, the Licensee has been professionally assessed and diagnosed with alcohol abuse and she is in the middle of an outpatient chemical dependency program.
In addition, the Licensee has given inconsistent versions of what occurred on May 4, 2010. In one version, a friend dropped by and they shared a drink. In another version, the Licensee had a couple of quick drinks in the bathroom after a stressful text message from her former husband, but she later added that a friend had stopped by and delivered a bottle of liquor to her. At no time did the Licensee acknowledge that her judgment was impaired that day, or that the children in care may have been at risk, even though she knew that the breath test result showed alcohol concentration of .162, twice the legal limit to drive.
Although the Licensee maintained in her interview with the investigators that she had told the parents of the children in her care the full story concerning her suspended license, it is apparent from the letters that the parents were not aware that the Licensee had failed a breath test administered by the police. In light of the continued denial by the Licensee of the circumstances surrounding the suspension, there is reasonable cause to conclude that she continues to pose a risk of imminent harm to the children in her care, and to continue the Temporary Immediate Suspension.
In light of the Licensee’s good record and strong support from some of the families for whom she provides care, it is possible that the Department may determine that the Licensee can safely provide care if she successfully completes treatment, acknowledges the risk that she poses to children, and meets certain conditions. However, until her treatment and the investigation have been completed, and the possibility of appropriate conditions can be evaluated, it would be imprudent to lift the suspension of her license.
B. J. H.
[1] Exhibit (Ex.) 1 at 27, 31.
[2] Ex. 1 at 1.
[3] Ex. 1 at 1-2.
[4] Ex. 1 at 3.
[5] Ex. 1 at 3-5.
[6] Ex. 1 at 4.
[7] Ex. 1 at 5.
[8] Ex. 1 at 110.
[9] Ex. 1 at 109.
[10] Ex. 1 at 9. See also Ex. 1 at 108-109. The name of the caller has not been redacted from the exhibits. Although the Department did not bring a motion to protect the identity of the caller pursuant to Minn. Stat. § 13.03, subd. 6, a Protective Order was entered on May 25, 2010, and the identifying information will not be included in this report. The identity of the caller has been disclosed to the Licensee.
[11] Ex. 1 at 10.
[12]
[13]
[14] Ex. 1 at 11.
[15] Ex. 1 at 11.
[16] Ex. 1 at 12, 106.
[17] Ex. 1 at 11.
[18] Ex. 1 at 105-06; Testimony of Maria Dierks.
[19] Ex. 1 at 104-05.
[20] Ex. 1 at 101-03.
[21] Ex. 1 at 99-100.
[22] Ex. 1 at 98.
[23] Ex. 1 at 16; Test. of William Steiner.
[24] Ex. 1 at 16-17; Test. of W. Steiner.
[25] Test. of W. Steiner.
[26] Ex. 1 at 17.
[27] Ex. 1 at 17; Test. of W. Steiner.
[28] Ex. 1 at 23-25; Test. of M. Dierks.
[29] Ex. 1 at 98.
[30] Ex. 1 at 27.
[31] Forty five pages of the transcript of the interview are included in Exhibit 1 at 28-72. It does not appear to be complete. See Ex. 1 at 93-95 (worker’s summary of the interview).
[32] Ex. 1 at 36-38, 41.
[33] Ex. 1 at 44-45.
[34] Ex. 1 at 49-50.
[35] Ex. 1 at 61-65.
[36] Ex. 68-69.
[37] Ex. 1 at 47.
[38] Exs. 2, 3 and 4.
[39] Ex. 1 at 93.
[40] Ex. 1 at 74-90.
[41] Ex. 1 at 91.
[42] Test. of Sandra Julkowski.
[43] Ex. 5.
[44] Test. of S. Julkowski.
[45] See letter to parties from Administrative Law Judge, June 4, 2010.
[46] Test. of S. Julkowski.
[47]
[48]
[49]
[50]
[51]
[52]
[53]
[54]
[55] In the Matter of the Temporary Immediate
Suspension of the Family Child Care License of Strecker, 777 N.W.2d 41, 46
(Minn. App. 2010), citing e.g. State v.
Childs, 269 N.W.2d 25, 27 (
[56] See In the Matter of the Temporary Immediate Suspension of the Family Child Care License of P.C., Commissioner’s Order, OAH Docket No. 6-1800-16139-2, Nov. 8, 2004.