OAH Docket No. 61-1800-21448-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF HUMAN SERVICES

In the Matter of the Denial of the License of Darrell Carlson to provide child foster care under Minnesota Rules, parts 9555.5105 to 9555.6265

FINDINGS OF FACT,

CONCLUSIONS, AND

RECOMMENDATION

Administrative Law Judge M. Kevin Snell (the ALJ) conducted a hearing in this contested case proceeding beginning at 9:30 a.m. on Tuesday, September 28, 2010, at the Wabasha County Criminal Justice Center in Wabasha, Minnesota. The OAH record closed on September 28, 2010, when the hearing ended.

James C. Nordstrom, Wabasha County Attorney, Wabasha, Minnesota, represented Wabasha County (the County) and the Minnesota Department of Human Services (the Department) at the hearing. Darrell Carlson, the Applicant, appeared on his own behalf.

STATEMENT OF THE ISSUES

(1) Whether the Commissioner has the authority to deny an application for a child foster care license based solely on a disqualification after that disqualification has expired; and

(2) Whether the Applicant’s application for a license to provide child foster care should be granted.

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

FINDINGS OF FACT

1. Applicant is a 54-year-old male who resides in Wabasha, Minnesota.[1]

2. Applicant pled guilty on February 1, 1994 to a controlled substance crime in the fifth degree for a violation of Minnesota Statutes section 152.025. He received a 15-month stayed sentence.[2]

3. Applicant is a recovering alcoholic and former cocaine addict who had been sober for seven years prior to a car accident in early 2008 that killed his daughter, a grandson and another child. Applicant’s only remaining grandson, now 11 years old, survived the crash.[3] The grandson is currently in foster care in Goodhue County.[4]

4. Applicant started drinking alcohol again after his daughter’s death and was arrested for driving while intoxicated in 2008. He subsequently lost his driver’s license, and entered and completed chemical dependency treatment at Wenden Recovery Services in Rochester, Minnesota.[5]

5. Applicant has now been sober for over 2 ½ years and has regularly and consistently attended Alcoholics Anonymous (“AA”) meetings and programs. He is an active participant in AA and provides much service and assistance to other AA members and his neighbors. Children are naturally attracted to him and he treats them well.[6]

6. Applicant has been attempting to gain custody of his grandson and was told by the County that he needed to have a child foster care license.[7]

7. On June 17, 2009, the Applicant filed an application with the County for a license to provide child foster care service for his grandson. In processing the Applicant’s application, the Department considered the results of the background studies required under Minnesota Statutes chapter 245C for Applicant and sent the County a yellow letter on July 6, 2009. A blue letter from the Department means that the applicant has passed the background study and that the county may proceed with the licensing application. A white letter from the Department means that the applicant has failed the background study and that the county must deny the licensing application. A yellow letter from the Department means that the Department requires more time to review the background study and that the County must wait before proceeding with the licensing application. [8]

8. Applicant currently has a driver’s license. He also had a driver’s license on June 17, 2009 when he applied for a child foster care license.[9]

9. The Department concluded from its review of the records that the Applicant was disqualified from providing family foster care based on the drug conviction in 1994, and sent a letter to the Applicant on August 26, 2009, with a copy to the County. The County received the August 26, 2009 letter from the Department on October 29, 2009.[10] Applicant received the August 26, 2009 letter from the Department.[11] The August 26, 2009 letter from the Department sets forth in detail the process to request reconsideration of the disqualification decision.[12] The letter also states in relevant part:

This conviction disqualifies you from any position allowing direct contact with, or access to, persons receiving services from a licensed child foster care program. A copy of the BCA record and the FBI record are enclosed.[13]

10. After receiving the August 26, 2009 disqualification letter, the County licensing social worker called Applicant and left a message for him. Applicant did not call the County licensing social worker until February 25, 2010.

11. Applicant did not request reconsideration of the disqualification decision.[14]

12. On February 11, 2010, the Department issued an Order of Denial of the Applicant’ license application.[15] The County received a copy of the letter on February 23, 2010.[16] That Order included a determination that:

Because you are disqualified from any position allowing direct contact with, or access to, persons served by DHS-licensed programs, and to ensure the health, safety, and rights of children receiving services in DHS-licensed programs, your application to provide child foster care is denied.[17]

The Order informed the Applicant of his right to appeal the decision and the right to a contested case hearing.

13. Thereafter, the Applicant appealed denial of his license application, and this contested case proceeding ensued.

14. Applicant seeks to care only for his grandson under a child foster care license. He is not seeking to care for any other children and is amenable to a conditional license that limits his foster care to his grandson.[18]

15. It is the opinion of four fellow participants in AA, including a retired registered nurse, that the Applicant does not now pose a risk of harm to his grandson or other children because of his status as an alcoholic. These individuals acknowledged that Applicant would pose a risk of harm to others if he failed to remain sober.[19]

16. On March 4, 2010, the Department issued the Notice of and Order for Hearing scheduling the hearing in this matter for August 3, 2010. The issue listed in the Notice and Order for Hearing is:

Whether foster care license was properly denied because of applicant’s prior drug conviction. [20]

Applicant requested a continuance and the parties agreed to a continued hearing date of September 28, 2010.

17. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references.

18. The Memorandum that follows explains the reasons for these Findings of Fact, and to the extent that the Memorandum may contain additional findings of fact, including findings on credibility, the Administrative Law Judge incorporates them into these Findings.

19. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.

Based upon these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. Minnesota law gives the Administrative Law Judge and the Commissioner authority to conduct this contested case proceeding and to make findings, conclusions, and recommendations or a final order, as the case may be.[21]

2. The Department and the County gave proper and timely notice of the hearing, and they have also fulfilled all procedural requirements of law and rule so that this matter is properly before the Administrative Law Judge.

3. Minn. Stat. § 245C.03, subd. 1(2) requires that background studies be conducted regarding “an individual age 13 and over living in the household where the licensed program will be provided.”

4. Minn. Stat. § 245C.14 regarding DISQUALIFICATION provides in relevant part:

Subdivision 1. Disqualification from direct contact. (a) The commissioner shall disqualify an individual who is 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, or when a background study completed under this chapter shows any of the following:

(1) a conviction of, admission to, or Alford plea to one or more crimes listed in section 245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor level crime….

5. Minn. Stat. § 245C.15 regarding DISQUALIFYING CRIMES OR CONDUCT provides in relevant part:

Subd. 2. 15-year disqualification. (a) An individual is disqualified under section 245C.14 if: (1) less than 15 years have passed since the discharge of the sentence imposed, if any, for the offense; and (2) the individual has committed a felony-level violation of any of the following offenses: . . . chapter 152 (drugs; controlled substance); or a felony-level conviction involving alcohol or drug use.

6. Applicant was convicted of a chapter 152 drug offense listed in Minn. Stat. § 245C.15 and was therefore disqualified for 15 years from having direct contact with persons being served in Department programs, as required by Minn. Stat. § 245C.14.

7. Minn. Stat. § 245C.29, subd. 2 (b), provides in relevant part as follows;

Subd. 2.Conclusive disqualification determination.

. . .

(b) When a licensing action under section 245A.05, 245A.06, or 245A.07 is based on the disqualification of an individual in connection with a license to provide family child care, foster care for children in the provider's own home, or foster care services for adults in the provider's own home, that disqualification shall be conclusive for purposes of the licensing action if a request for reconsideration was not submitted within 30 calendar days of the individual's receipt of the notice of disqualification.

8. Since the Applicant failed to request reconsideration of the disqualification determination, that disqualification determination is conclusive.[22]

9. Because he pled guilty and was convicted on February 1, 1994 and received a stayed sentence of 15-months from that date, the Applicant’s disqualification from holding any position allowing access to persons receiving services from a program licensed by the Department began upon the “discharge of the sentence imposed.” The date Applicant’s sentence was discharged was April 30, 1995. Therefore Applicant’s period of disqualification was in effect from May 1, 1995, through April 30, 2010.[23]

10. Since the Applicant’s disqualification did not expire until April 30, 2010, he was under a disqualification at the time of his application for a child foster care license in 2009.[24]

11. The Commissioner must deny a license if the applicant has:

(1) been disqualified and the disqualification was not set aside;

(2) has been denied a license within the past two years; or

(3) had a license revoked within the past five years.[25]

12. The Commissioner may deny a license if an applicant:

… fails to comply with applicable laws or rules, or knowingly withholds relevant information from or gives false or misleading information to the commissioner in connection with an application for a license or during an investigation.[26]

13. Under Minnesota Statutes, section 245A.04, subdivision 6, the Commissioner is required to evaluate the facts, conditions, or circumstances concerning the licensee’s program, the well-being of those served by the program, consumer evaluations of the program, if available, and the qualifications of those individuals assisting the licensee before issuing, denying, suspending, revoking, or making conditional a license.

14. Minnesota Statutes, section 245A.04, subdivision 6, also requires the Commissioner to evaluate the results of a background study and determine whether a risk of harm to the persons served by the program exists. In conducting this evaluation, the Commissioner shall apply the disqualification standards set forth in chapter 245C.

15. Under Minnesota Statutes, section 245A.04, subdivision 7, “[i]f the commissioner determines that the program complies with all applicable rules and law, the commissioner shall issue a license.”

16. Under Minnesota Statutes, section 245A.08, subdivision 3(b), an applicant bears the burden of proof to demonstrate by a preponderance of the evidence that the applicant has complied fully with applicable rule or law and that the application should be approved and a license granted.

17. Because the Applicant had a conclusive disqualification at the time of application for a child foster care license, as a matter of law he could not prove that he had complied fully with Minnesota Statutes, section 245A.04 as of the date of his application on June 17, 2009.

18. Applicant is under no disqualification at this time because his conclusive disqualification period expired April 30, 2010.

19. Because there is no evidence in the record that Applicant is not now in full compliance with the licensing laws and rules relating to child foster care licenses, and Applicant submitted evidence that he poses no risk of harm at this time, Applicant has demonstrated by a preponderance of the evidence that he has complied fully with applicable rule or law and that the application should be approved and a license granted.

20. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.

21. The Memorandum that follows explains the reasons for these Conclusions, and the Administrative Law Judge therefore incorporates that Memorandum into these Conclusions.

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 therefore RESPECTFULLY RECOMMENDS:

1. That the Department’s Order of Denial dated February 11, 2010 be VACATED; and

2. That the Department APPROVE the application of Darrell Carlson for a license to provide child foster care.

Dated this

26^th

day of

October

2010.

s/ M. Kevin Snell

M. KEVIN SNELL

Administrative Law Judge

Reported: Digitally Recorded. No transcript prepared.

MEMORANDUM

Except for the conclusive disqualification, there is no other evidence in the record that the Applicant has failed to comply fully with all applicable rules and law pertaining to the issuance of licenses to provide child foster care services. His prior disqualification has now expired. However, it was in effect at the time of his application for a child foster care license. The only issues in this proceeding are whether the Department properly denied Applicant’s application for a child foster care license in 2009 because of a disqualification, and whether the Commissioner should now approve Applicant’s application for a child foster care license.

The Basis for a Disqualification

Determination Was Conclusively Established

After a required background investigation the Applicant was found by the Department to have been convicted of a crime for which the law required him to be disqualified from providing services for DHS-licensed programs. Applicant did not request reconsideration of the disqualification decision. The Applicant is therefore legally bound by the determination that he was disqualified under Minnesota Statutes, section 245C.15, subdivision 2(a) for a period of 15 years.

II.

The Applicant Was Disqualified from Licensure

From May 1, 1995, through April 30, 2010

Minnesota Statutes, section 245C.14, subdivision 1(a)(1) requires disqualification of an applicant for licensure when a background study reveals a conviction under Minnesota Statutes Chapter 152. Applicant’s February 1, 1994 conviction under Minn. Stat. § 152.025 was identified by the Department as the sole basis for the disqualification and denial of the child foster care license. Under Minnesota Statutes, section 245C.15, subdivision 2(a), an individual is disqualified under section 245C.14 if less than fifteen years have passed from the date of discharge of sentence on a conviction. As a matter of law, Applicant’s disqualification expired on April 30, 2010.

At the hearing the Department did not present argument regarding the dates of when Applicant’s 15-year disqualification period began, or when it ended. The Department did argue that Applicant’s disqualification period began upon the “discharge from sentence” for the February 1, 1994 conviction.[27] Applicant received a 15-month stayed sentence on February 1, 1994. Application of the statute places the expiration of the disqualification period at April 30, 2010.

III.

There is No Longer a Basis to Deny

Applicant’s License for Child Foster Care

The Department’s case rests on the now-expired disqualification arising from the 1994 drug conviction as the sole basis for its Order of Denial. Apparently, based upon what the Department considered to be the serious nature of Applicant’s conduct in 1994, it concluded it could not now ensure the health, safety, and rights of persons under the Applicant’s care, and the Department denied the application for those reasons alone.[28]

Minnesota Statutes, section 245A.04 sets forth the statutory requirements for applications for licenses to operate certain programs administered by the Department, including child foster care programs. Subdivision 7 describes the circumstances under which the Commissioner must issue a license:

Subd. 7. Issuance of a license; extension of a license. (a) If the commissioner determines that the program complies with all applicable rules and laws, the commissioner shall issue a license. [Emphasis supplied.]

The language of Subdivision 7 is mandatory; it makes no provision for discretionary denial of licensure by the Commissioner. However, the mandatory nature of the language is qualified somewhat by paragraph (e) of the same subdivision, which specifies when the Commissioner must deny a license:

(e) The commissioner shall not issue a license if the applicant, license holder, or controlling individual has:

(1) been disqualified and the disqualification was not set aside;

(2) has been denied a license within the past two years; or

(3) had a license revoked within the past five years.

But Minnesota Statutes, section 245A.04, subdivision 7(e) gives no discretionary authority to the Commissioner to deny a license application based on potential risk of harm or any other such factors.

Minnesota Statutes, section 245A.05 addresses the Commissioner’s discretionary authority to deny licenses, and it limits that discretionary authority to only two situations:

The commissioner may deny a license if an applicant fails to comply with applicable laws or rules, or knowingly withholds relevant information from or gives false or misleading information to the commissioner in connection with an application for a license or during an investigation.

Again, Minnesota Statutes, section 245A.05 gives no discretionary authority to the Commissioner to deny a license application based on potential risk of harm or any other such factors.

Minnesota Statutes, section 245A.04, subdivision 6, does require the Commissioner to conduct broader evaluations of information regarding programs before issuing, denying, suspending, or revoking licenses:

Subd. 6. Commissioner's evaluation. Before issuing, denying, suspending, revoking, or making conditional a license, the commissioner shall evaluate information gathered under this section. The commissioner's evaluation shall consider facts, conditions, or circumstances concerning the program's operation, the well being of persons served by the program, available consumer evaluations of the program, and information about the qualifications of the personnel employed by the applicant or license holder.

The commissioner shall evaluate the results of the study required in subdivision 3 and determine whether a risk of harm to the persons served by the program exists. In conducting this evaluation, the commissioner shall apply the disqualification standards set forth in chapter 245C.

But unless the information being evaluated establishes noncompliance with applicable rules and laws, nothing in that subdivision gives the Commissioner any further powers to deny, suspend, or revoke licenses.[29]

The Department’s argument at the hearing appears to rely on the second paragraph of Minnesota Statutes, section 245A.04, subdivision 6, as independent authority for denying the Applicant a child foster care license based on a finding that he poses a risk of harm to persons served by such a program. But that provision does not contain a separate grant of authority to deny based on a finding of risk of harm. Rather, it specifically refers to risk of harm assessments in the context of the disqualification provisions of Chapter 245C, which allow the Commissioner to set aside a disqualification based on a finding that an applicant poses no risk of harm.[30] Under that statutory scheme, a risk of harm assessment is unnecessary and superfluous if an applicant is not disqualified.

On May 1, 1995, the Applicant was disqualified because that date was the date of the discharge of the sentence imposed for his conviction of the violation of Minn. Stat. § 152.025. That disqualification expired by operation of law on April 30, 2010. That fact does not establish a basis for mandatory denial under Minnesota Statutes, section 245A.04, subdivision 7 (e) at this time. Applicant is not currently disqualified; he has not had a license revoked within the last five years; and he has not had a final order by the Commissioner on a license denial within the last two years. Neither does the record establish a basis for discretionary denial under Minnesota Statutes, section 245A.05. There is no evidence of a violation of applicable rules and laws, nor is there evidence that he has “knowingly [withheld] relevant information from or [given] false or misleading information to the commissioner in connection with an application for a license.” On the record of this case, there is no basis in law for denying his application for a child foster care license.

IV.

Conclusion

The only basis that the Department relied on for denial of Applicant’s application was the 1994 conviction and resultant disqualification. The fact of the disqualification is conclusive because Applicant did not request reconsideration of that decision. However, that disqualification is no longer in effect. The legislature has established its own criteria for determining whether that is a sufficient basis for denial of licensure. By enacting Minnesota Statutes, section 245C.14 in its current form, the legislature, in effect, created an irrebuttable presumption that after the passage of fifteen years, a person convicted of a drug crime no longer poses a risk of harm to individuals served by the program because of the conduct that gave rise to that determination. Applicant’s disqualification expired on April 30, 2010, and the Department has not established any remaining basis in the record to deny Applicant’s application.

Even if the legislature had given the Commissioner discretionary authority to deny a license application based on a finding of risk of harm not embodied in a current disqualification, the Department has failed to produce sufficient evidence that Applicant is a current risk of harm to children. A preponderance of the evidence in the record suggests the contrary. Individuals who know the Applicant, his lifestyle and behavior are of the opinion that he does not pose a risk of harm to children.[31] The fact that the Applicant is a recovering alcoholic, in and of itself, is not sufficient evidence to lead a reasonable, prudent person to conclude that he poses a current risk of harm to children. The ALJ therefore recommends that the Order of Denial be vacated, and that the Applicant be issued a conditional license that would allow him to provide child foster care to his grandson.

M.K.S.

[1] Exhibit 1a; Testimony of Darrell Carlson and Cindy Lundstrom, County Licensing Social Worker.

[6] Ex. 3; Test of Tiffany Livingston, Ronald Dietl, John Lass and Harold Koch.

[7] Test. of D. Carlson and C. Lundstrom; Ex. 4.

[12] Ex. 1a; Test. of D. Carlson and C. Lundstrom; Ex. 4.

[12] Test. of C. Lundstrom.

[19] Test. of T. Livingston, R. Dietl, J. Lass and H. Koch.

[21] Minnesota Statutes, sections 14.50, 14.57, 14.69, sections 245A.05 through 245A.08, and Chapter 245C.

[23] See discussion in Part II of the Memorandum that follows.

[24] See Part III of the Memorandum that follows.

[27] Neither the Department’s August 26, 2009 letter regarding the disqualification decision nor the February 11, 2010 Order of Denial of the application for a child foster care license, nor any other document in the record, indicates the date from which the Department determined that the disqualification would begin to run.

[29] In fact, Minnesota Statutes, section 245A.07, subdivision 3, contains identical limits on the Commissioner’s authority to suspend or revoke license that are virtually identical to the limits on his authority to deny licensure applications:

The commissioner may suspend or revoke a license, or impose a fine if a license holder fails to comply fully with applicable laws or rules, has a disqualification which has not been set aside under section 245C.22, or knowingly withholds relevant information from or gives false or misleading information to the commissioner in connection with an application for a license, in connection with the background study status of an individual, or during an investigation.

This strongly indicates that the legislature intended the limitations on the Commissioner’s authority to take adverse licensure actions to be coextensive in both situations.

[30] See Minnesota Statutes, section 245C.22, subdivision 4.