OAH 16-1800-21375-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Revocation of the Family Child Care License of Janalynn Hartmann |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came before Administrative
Law Judge Manuel J. Cervantes (ALJ) for hearing on July 28, 2010, at the
Frederic S. Stephens, Assistant County Attorney, appeared on behalf of Hennepin County Human Services and the Minnesota Department of Human Services (Department). The licensee, Janalynn Hartmann (Licensee or Ms. Hartmann), appeared on her own behalf.
Did the Department establish reasonable cause to properly revoke the child care license of Janalynn Hartmann based on her failure to comply with the requirements of the applicable licensing laws and rules?
The
Department established reasonable cause to revoke Ms. Hartmann’s child care
license but, under all the circumstances of this matter, the ALJ respectfully
recommends that the revocation order be set aside in favor of a conditional
license not unlike that initially recommended by Hennepin County Human Services.
Based on the evidence in the hearing record, the ALJ makes the following:
FINDINGS OF FACT
1. The Licensee is licensed by the
Department through
2. Throughout the period of Ms. Hartmann’s license, there has been only one previous licensing incident. In 2002, there was an incident reported wherein Hennepin County Licensing determined that no determination could be made regarding lack of supervision, but that a failure to report suspected maltreatment of a child in care had occurred.[2] On that occasion, Mr. Hennessey, Hennepin County Social Worker, discussed the standard for reporting with Ms. Hartmann.[3]
3. In November 2009, Ms. Hartmann had eight children in her daycare program, including her nine-year-old grandson H.H. Ms. Hartmann’s son, B.H., also stays in the child care home two days per week in order to visit with H.H. The parents of H.H. are separated but have a shared custody arrangement.[4]
4. On November 27th, 2009 , five-year-old H.B., one of the children that Ms. Hartmann cares for, told her parents that on two prior occasions since September, H.H. had gotten on top of her, made a thrusting motion, and had stated that they were “having sex.”[5] H.H. later admitted to this behavior. H.B.’s parents left a phone message for Ms. Hartmann stating that there had been an incident and that they would not be bringing H.B. to daycare on November 30th.
5. Ms. Hartmann received this message late on November 29th, upon returning from out of town, but did not learn of the nature of the incident until talking with H.B.’s parents early on November 30th. Upon receiving a complaint by H.B.’s parents on November 30th, an investigation by Hennepin County Child Protection ensued on December 3, 2009.[6] Ms. Hartmann did not report the incident because she did not believe the conduct amounted to sexual abuse.[7]
6. The investigation revealed that B.H. and H.H. are household members, which had not been previously disclosed to Hennepin County Child Care Licensing in the license reapplication for 2009. As a result, no background check was conducted on B.H. A subsequent background check on B.H. in 2010 came back clear.[8] In years prior to 2006, both B.H. and H.H. had been listed as household members.[9]
7. Based on its investigation, Hennepin County Child Care Licensing recommended that the Department take a negative action against Ms. Hartmann’s license in the form of a conditional license. The conditions included the direct supervision of H.H. when he was in the home during child care hours, among others.[10] This action could have included conditions, suspension, or revocation. The Department subsequently issued an order of revocation.[11]
8. Ms. Hartmann corrected the violations by agreeing to closely supervise H.H. as discussed with Mr. Hennessey, submitting a clear background check for B.H., and reporting additional household members.[12] Upon the conclusion of Child Protective Services’ investigation, the parents of H.B. and her younger sister resumed bringing their children to Ms. Hartmann’s daycare home.[13]
9. Following Hennepin County Child Care Licensing’s investigation and recommendation, H.H. has been seen by a therapist in response to this incident and for suspected ADD.[14]
10. Mr. Hennessey had a phone conversation with the therapist where the therapist opined that the sexual incident was likely a one-time occurrence when compared with other children who repeat such actions. This information may not have been available to the Department when making its decision to revoke the license. The therapist addressed the inappropriate conduct with the use of anatomically correct dolls and was not overly concerned about the incidents. The focus of the ongoing therapy has been to address H.H.’s other issues. The therapist did not think a psycho-sexual evaluation was required nor did H.H. exhibit boundary issues in playtime.[15]
11. Mr. Hennessey discussed with Ms. Hartmann the possibility of operating without H.H. being present during daycare hours, but this option was not acceptable to Ms. Hartmann. Based on the perceived danger presented by having H.H. in the daycare home, at the time of the hearing, Hennepin County Child Care Licensing recommended upholding the revocation.[16]
12. At the hearing, both parents of H.B. testified that they were very satisfied with the measures taken by Ms. Hartmann to address the incidents and to create a safe daycare environment for their daughters.[17] Mr. A.B., H.B.’s father, has noticed that H.H.’s attitude has improved since the incident, possibly as a result of therapy, that H.H. has been adequately supervised since the incident, and that he would not trust anyone more than Ms. Hartmann to watch his children.[18]
14. H.H.’s parents testified that H.H. is very contrite and understands the nature of his actions were wrong. H.H.’s attitude and responsibility have improved as a result of therapy.[19]
1. The Commissioner of Human Services and
the Administrative Law Judge have jurisdiction to consider this matter pursuant
to Minn. Stat. §§ 14.50 and 245A.07.
2. The Department gave proper and timely notice of the hearing and has complied with all procedural requirements of law and rule.
3. Minn. R. 9502.0315, subp. 29a, defines “supervision” for licensing of child care facilities as:
… For the school aged child, it means a caregiver being available for assistance and care so that the child’s health and safety is protected.[20]
Because the victim, H.B., was 5 years old, and H.H., was 9 years old, they are both considered to be “school aged.”[21]
4. Ms. Hartmann violated the standard of required supervision because H.H.’s inappropriate conduct occurred on more than one occasion, the conduct occurred in the daycare home while the provider was present, and because of the disparity in the age of the children.[22]
5.
6. Ms. Hartmann violated this Rule by her failure to report the incident immediately after she became aware of what had occurred.
7.
8. Ms. Hartmann violated this Rule by failing to report the presence of B.H. and H.H. in the daycare home. However, based on the clean background check returned for B.H., this ameliorates the violation.
9. “The Commissioner’s evaluation shall consider facts, conditions, or circumstances concerning the program’s operation, the well-being of persons served by the program, [and] available consumer evaluations of the program….”[25]
10. Both of H.B.’s parents, as consumers of Ms. Hartmann’s daycare services, testified emphatically about the level of safety and quality of care provided to their children by Ms. Hartmann. This information was not available to the Department in making its decision to revoke the license.
11. The issue then is a weighing of the state’s obligation to protect children through enforcement of its licensing standards against the parents’ trust in a provider and their right to choose who will care for their children. Based on the testimony of H.B.’s parents and their trust in Ms. Hartmann to provide safe care of their daughters, revoking the license of Ms. Hartmann, in light of all the circumstances, does not seem appropriate.
12.
If the commissioner finds that the applicant or license holder has failed to comply with an applicable law or rule and this failure does not imminently endanger the health, safety, or rights of the persons served by the program, the commissioner may issue a correction order and an order of conditional license to the applicant or license holder. When issuing a conditional license, 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.[26]
13. In this case, a conditional license is appropriate as Ms. Hartmann’s violations did not imminently endanger the health, safety, or rights of the persons served. This approach was considered in the initial recommendation by Hennepin County Child Care Licensing. While the nature of this incident is serious, the violation of failed supervision can and has been corrected through increased supervision of H.H., which Ms. Hartmann has effectuated as part of the conditional license. The behavior occurred on two occasions, but has not continued. H.H. has been receiving therapy and the therapist believes the incident was an isolated event. Thus, with increased supervision as a condition to her license to address any outstanding risk, Ms. Hartmann should be able to continue to provide day care services.
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 respectfully recommends that the revocation order be set aside in favor of a conditional child care license.
Dated: August 26, 2010
s/Manuel J. Cervantes
|
MANUEL
J. CERVANTES 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 Recommendation. Under
Minn. Stat. § 14.61, the Commissioner shall not make a final decision until
this Report has been made available to the parties for at least ten days. The parties may file exceptions to this
Report and the Commissioner must consider the exceptions in making a final
decision. Parties should contact Cal Ludeman, Commissioner of Human Services,
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
Pursuant to Minn. Stat. § 14.62, subd. 1, the Commissioner is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.
MEMORANDUM
Ms. Hartmann has had a long and proficient career in the provision of child care services. She is highly admired by the parents of H.B. Ms. Hartmann is the only care provider their children have ever known. Both of H.B.’s parents testified that they had no reservations about continuing their child care relationship with Ms. Hartmann and are “absolutely satisfied” with the direct supervision of H.H. as well as the changes in H.H.’s overall behavior. In the approximate 27 year history of daycare, there has been only one other negative report against Ms. Hartmann; that occurred in 2002 and was inconclusive. Ms. Hartmann was counseled at that time of her obligation to report any suspected neglect or abuse.
Ms. Hartmann testified at the hearing that although she could not see all the children all the time, she was aware of the children’s activities and could hear them through the open staircase in the home. One could reasonably conclude that H.H.’s inappropriate conduct was unforeseeable but it occurred more than one time. Based on these facts, it is not unreasonable to find a violation of the supervision rule.
Likewise, Ms. Hartmann violated the rule’s obligation to report any suspected neglect or abuse. Ms. Hartmann testified that she did not consider H.H.’s conduct sexual abuse and did not feel it was necessary to report knowledge of the incidents. This is unfortunate, particularly in light of the counseling she received in 2002 to report any suspected abuse, even if in doubt.
Finally, Ms. Hartmann violated her obligation to report B.H. and H.H. as household members. She had reported them to the Department as household members in the past, but because of inconvenience she did not do so in 2009. As a result, B.H. did not undergo a timely background check at the time of re-licensing. His subsequent background check in 2010 came back clear.
Based on these violations, the Department has a lawful basis to revoke Ms. Hartman’s license, however, in light of all the circumstances, this may not be necessary.
As
stated before, Ms. Hartmann has a near perfect record in the provision of daycare
services. Since the incidents with H.H.,
Ms. Hartmann has implemented compliance with the correction order and conditions
that were placed on her license by
H.H. started therapy shortly after the investigation. The therapist addressed the sexual incidents with H.H. and felt that it was a one time event. She did not feel that a psycho-sexual evaluation was necessary. The therapist has continued to work with H.H.’s other issues. The direct inference is that H.H. does not pose a risk to other children in daycare. If the Department feels that a psycho-sexual evaluation would be necessary or appropriate, it may be an additional condition.
Mr. A.B. testified that H.H.’s improved behavior may be as a result of his therapy. This was echoed by both of H.H.’s parents. H.H.’s mother testified that because of counseling, H.H. is a different boy today. B.H. testified that H.H. did not really know that what he did was wrong, but because of counseling, he knows that now and B.H is confident that it would not happen again.
Finally, Minn. Stat. § 245B.04, subd. 6, requires the Commissioner to consider available consumer evaluations of the program, among other factors, before revoking or making conditional a license. Given the high regard and confidence H.B.’s parents have for Ms. Hartman’s services, and the other circumstances described above, the scale may tilt in favor of a conditional license rather than license revocation.
M.J.C.
[1] Testimony of Janalynn Hartmann (Test. of J. Hartmann).
[2] Order of Revocation, p. 3.
[3] Test. of Tim Hennessey.
[4] Test. of J. Hartmann
[5] Test. of Gregory Hrncirik.
[6] Test. of J. Hartmann.
[7]
[8] Exhibit H.
[9] Test. of T. Hennessey.
[10] Ex. 2, p. 4; Ex. C.
[11] Ex. I.
[12] Ex. D.; Test. of T. Hennessey.
[13] Ex. 3, page 3.
[14] Ex. M.;
[15] Test. of Tim Hennessey.
[16]
[17] Test. of A.B., H.B.’s mother and Test. of A.B., H.B.’s father.
[18] Test. of A.B.
[19] Test. of D.W.; Test. of B.H.
[20]
[21] Test. of T. Hennessey.
[22]
[23]
[24]
[25]
[26]