OAH 8-1800-21772-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Order to Forfeit a Fine and for Conditional
Status of the License of LeChresha Spears. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This
matter came before Administrative Law Judge Eric L. Lipman for an evidentiary
hearing on February 22, 2011. The
hearing was held in at the
Frederic
S. Stephens, Assistant County Attorney, Hennepin County Attorney’s Office,
appeared on behalf of Hennepin County Human Services and the Minnesota
Department of Human Services (County and Department). The Licensee, LeChresha Spears, appeared on
her own behalf and without counsel.
STATEMENT OF ISSUES
1.
Did the
Department demonstrate that reasonable cause exists to support its
determination that Licensee should be fined $1000 based on its determination
that she committed maltreatment by neglect under Minn. Stat. § 626.556?
2.
Did the
Department demonstrate that reasonable cause exists to support a fine of $200
for failure to submit a background study for a caregiver?
3.
Did the
Department demonstrate that reasonable cause exists to support two $200 fines
for two instances in which a substitute caregiver had not completed required
training?
4.
Did the
Department demonstrate that reasonable cause exists to support the Order of
Conditional License for Ms. Spears’ child care license?
5.
If the
Department demonstrated reasonable cause to support the fines and conditional
license, did Ms. Spears demonstrate by a preponderance of the evidence that she
complied with all applicable laws and rules?
Based upon the hearing record, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Licensee
has been licensed to operate a group family day care in
2.
At all
times relevant to these proceedings, the Licensee was licensed as a group
family child care provider.[2]
Violations of Training and
Background Study Requirements
3.
On
December 14 and15, 2009, Hennepin County Licensing staff received complaints
against the Licensee.[3]
4.
During the
investigation of these complaints, the licensing investigator determined that the
Licensee’s helper, Natalie, was providing substitute care for Licensee and that
Natalie had not participated in Shaken Baby Syndrome training as required by
Minn. Stat. § 245A.50, subd. 5.[4]
5.
On
December 16, 2009, the County issued a Correction Order to the Licensee based
on her use of a substitute caregiver who lacked required Shaken Baby Syndrome
training.[5]
6.
Ms.
Spears did not request reconsideration of the December 16, 2009 Correction
Order.[6]
7.
On July
14, 2010, Hennepin County Licensing staff received a report that Licensee’s mother, Janet Echols, was
providing care at Licensee’s child care program and that Ms. Echols used
corporal punishment on a child.[7]
8.
As a
result of the investigation that followed, the County issued a Correction Order
on July 21, 2010. The Correction Order
determined that: Ms. Echols used
physical punishment in violation of Minn. R.
9502.0395, subp. 2.A.; Ms. Echols was working in Licensee’s child care
program without a required background study as required by Minn. Stat. §
245C.03, subd. 1 (a)(3); and that Ms. Echols lacked caregiver training as
required by Minn. Stat. § 245A.50, subd. 1 and 5.[8]
9.
Because
these violations were not addressed by mid-August 2010, they were included in a
second Correction Order dated August 17, 2010.[9]
10.
Licensee
requested reconsideration of the July 21, 2010 and August 17, 2010 Correction
Orders. Ms. Spears’ request for
reconsideration was denied in a letter dated September 30, 2010 from the
Department of Human Services.[10]
Maltreatment by Neglect
11.
In July
of 2010, Ms. Spears had an arrangement with one of her day care parents, K.S.,
to transport K.S.’s children to the home of K.S.’s sister at the end of each
week day. K.S. had five children under
care with the Licensee.[11]
12.
In July
of 2010, K.S.’s children were 8, 6, 4, 3 and 2 years old.[12]
13.
In July
of 2010, K.S.’s sister, T.S., lived in the Cinnamon Ridge Apartments on
14.
On July
28, 2010, some time between 3:30 and 4:00 p.m., the Licensee drove the five
siblings to the Cinnamon Ridge Apartment complex and waited in her automobile
as the children entered, unescorted, into the building. Because the apartment building has a secure
entryway and foyer, the children pressed the buttons on the outside intercom
until one of the residents responded by activating the electronic entry
mechanism.[14]
15.
Consistent
with her practice, the Licensee waited in her van for one of the children’s
relatives – either their aunt or another adult – to come down to the building’s
foyer and signal that the children had been safely received.[15]
16.
T.S.
was not at home when the children arrived at her apartment.[16]
17.
Approximately
10 minutes after the children had entered the building, an adult in the foyer
waved to the Licensee. The person who
waved to Ms. Spears was not the children’s aunt and was not otherwise known to Ms.
Spears. The Licensee assumed that the
person who waived to her was related to K.S.’s children.[17]
18.
At
approximately 4:15 p.m., the children walked, by themselves, from their aunt’s
apartment building to the leasing office of the complex. The route between the two buildings is
approximately one-quarter of a mile along
19.
Arriving
at the leasing office, the children asked the Rental Agent to telephone T.S. – explaining
that T.S. was not answering her apartment door. The Rental Agent attempted to telephone T.S.
but could not reach her. The children stated
that they would walk back to their aunt’s apartment. The Rental Agent suggested that they return
to her office if they were unable to find their aunt. When none of the children returned, the
Rental Agent assumed that they had found T.S.[19]
20.
Later, the
Rental Agent received calls from tenants reporting that there were unsupervised
children in the building. The Rental
Agent then called the police.[20]
21.
Shortly
after 5:00 p.m., Officer Jenni Wills of the Eagan Police Department arrived at
the Cinnamon Ridge Apartments. The children
were sitting outside of the apartment complex, unsupervised, when she arrived. Officer Wills, Officer Lisa Francher and the children
went upstairs to T.S.’ apartment. The children’s
shoes were outside the apartment door and the apartment door was locked.[21]
22.
While
undertaking some errands late in the afternoon, Ms. Spears retrieved a text
message from K.S. The message stated
that T.S. was not available that day to care for K.S.’s children.[22]
23.
After
receiving the text message from K.S., the Licensee called T.S., who verified
that she was not with the children.[23]
24.
The Licensee
drove back to the Cinnamon Ridge complex where she found Officers Wills and
Francher with K.S.’s children.[24]
25.
After
confirming with K.S. that she wanted her children left in the Licensee’s care,
the police officers left the scene.[25]
26.
The Licensee
remained with K.S.’s children until approximately 7:00 p.m., when adult relatives
arrived to care for them.[26]
27.
Hennepin
County Human Services and Public Health Department notified Licensee in a
letter dated August 11, 2010 that it found Licensee was responsible for
neglecting the Children pursuant to Minn. Stat. § 626.556, subd. 2(f).[27]
28.
In a
letter dated August 16, 2010, Ms. Spears challenged the neglect determination.[28]
29.
30.
On
September 15, 2010, Ms. Spears appealed the maltreatment determination.[30]
Order to Forfeit a Fine and
Order of Conditional License
31.
In a
letter dated November 30, 2010, the Department of Human Services Ordered that Licensee
forfeit fines of $1,600. The Department
imposed a $1,000 fine following its finding of maltreatment by neglect, imposed
two fines of $200 each for failing to have the substitute caregiver adequately
trained, and a $200 fine for a failure to obtain a background study.[31]
32.
In
addition, the November 30, 2010 Order made Licensee’s child care license
subject to a number of conditions for a period of one year. Among those conditions, the Licensee must:
obtain additional training, beyond the annual training requirements for
licensed child care providers; submit a plan for hours of operation limiting Licensees
child care program to no more than 12 hours per day; and submit a detailed
safety and supervision plan, a written background study plan, and procedures for
signing children in and out of the day care home.[32]
33.
The Licensee
timely appealed the imposition of fines and a conditional license.[33]
Based on the Findings of
Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Administrative Law Judge and the Commissioner of Human Services have jurisdiction
over this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2.
The County
and the Department has complied with all substantive and procedural
requirements of law and rule.
3.
Maltreatment
of a minor by neglect is defined in relevant part as “failure to protect a
child from conditions or actions that seriously endanger the child’s physical
or mental health when reasonably able to do so” and “failure to provide for
necessary supervision or child care arrangements appropriate for a child after
considering factors as the child’s age, mental ability, physical condition,
length of absence, or environment, when the child is unable to care for the
child’s own basic needs or safety.”[34]
4.
Pursuant to Minn. Stat. § 256.045, subd. 3b, the
Department may demonstrate that “maltreatment has occurred if a preponderance
of evidence exists to support the final disposition ….”
5.
The
Licensee failed to insure that an authorized, responsible adult was available
to care for K.S.’s children on July 28, 2009.
Her failure resulted in the children being unsupervised, and at risk of
serious harm, for an hour or more.
6.
With respect to the training and background
study violations, pursuant to Minn. Stat. § 245A.08, subd. 3, the Department
may demonstrate reasonable cause for the proposed licensing sanction by
submitting statements, reports, or affidavits to substantiate the allegations
that the license holder failed to comply fully with applicable law or
rule. If the Department demonstrates
that reasonable cause existed, the burden of proof shifts to the license holder
to demonstrate by a preponderance of the evidence that she was in full
compliance with those laws or rules.
7.
Minn.
Stat. § 245C.03, subd. 1 (a) (3) requires that a background study be performed
on “current or prospective employees
or contractors of the applicant who will have direct contact with persons
served by the facility, agency, or program.”
8.
Minn.
Stat. § 245C.03, subd. 1 (h) requires that such background studies be complete
before the individuals “begin positions allowing direct contact in any licensed
program.”
9.
The
Licensee failed to demonstrate that Ms. Echols underwent a background study
prior to having direct contact with children served by the Spears day care.
10.
Minn.
Stat. § 245C.03, subd. 1 (a) (3) requires that “licensed child foster care
providers that care for infants or children through five years of age must
document that before staff persons and caregivers assist in the care of infants
or children through five years of age, they are instructed on the standards in
section 245A.1435 and receive training on reducing the risk of sudden infant
death syndrome and shaken baby syndrome for infants and young children.”
11.
The
Licensee failed to demonstrate that either of her substitute caregivers had
received training on reducing the risk of sudden infant death syndrome and
shaken baby syndrome for infants and young children.
12.
The
Licensee failed to demonstrate by a preponderance of the evidence that she was
in full compliance with the above-cited laws and rules at the time the
Commissioner alleges the violations occurred.
13.
The
Commissioner may sanction a license if a license holder fails to fully comply
with applicable laws or rules. When
applying licensing sanctions, the Commissioner must “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.”[35]
14.
The
record in this proceeding supports the conditioning of Ms. Spears’ license and
imposition of fines for her violation of the training and background study requirements.
Based upon the Conclusions, and for the
reasons explained in the accompanying Memorandum, the Administrative Law Judge
makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the
Commissioner of the Department of Human Services AFFIRM the Order to Forfeit a
Fine and Order of Conditional License.
Dated: March 22, 2011
__/s/ Eric L. Lipman_____________________
ERIC L. LIPMAN
Administrative Law Judge
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 shall have ten calendar days to
submit exceptions to the administrative law judge's report. The record shall close at the end of the
ten-day period for submission of exceptions. The commissioner's final order
shall be issued within ten working days from the close of the record.[36] Parties should contact Lucinda Jesson, Commissioner, Department of
Human Services,
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. Spears argued at the
evidentiary hearing that the imposition of $1,600 in fines is a disproportionate
response to any of the claimed violations in state day care standards.[37] The Administrative Law Judge disagrees.
The fines imposed by the
Department were in the amount set by the Legislature in
Moreover, the
Department’s response comes against the backdrop of earlier rule violations,
and in this instance, serial violations of the supervision and training
standards.[38] The
Order to Forfeit a Fine and Order of Conditional License are appropriate,
necessary for the protection of the children under care and should be affirmed.
E. L. L.
[1] Testimony of Tim Hennessey; Exhibit 28 at 1.
[2] See, Exs. 1 through 29.
[3] Ex. 14 at 1-2.
[4] Ex. 14 at 3.
[5] Ex. 15.
[6] Test. of T. Hennessey.
[7] Ex. 17.
[8] Ex. 18.
[9] Ex. 21.
[10] Ex. 27; Test. of T. Hennessey.
[11] Ex. 2 at 9; Ex. 5 at 1-8; Testimony of Loretta Huffman.
[12] Ex. 1 at 1-4; Test. of L. Huffman.
[13] Ex. 1 at 1; Ex. 2 at 9; Ex. 3 at 5.
[14] Id; Testimony of LeChresha Spears.
[15] Ex. 5 at 2.
[16] Ex. 3 at 5-6.
[17] Ex. 5 at 3-4.
[18] Ex. 2 at 2; Ex. 3 at 7.
[19] Ex. 2 at 5.
[20]
[21] Ex. 3 at 5.
[22] Ex. 5 at 4.
[23] Ex. 5 at 6.
[24] Ex. 5 at 7.
[25] Ex.3 at 6-7.
[26] Ex. 2 at 10; Ex. 5 at 14..
[27] Ex. 6 at 1.
[28] Ex. 7.
[29] Ex. 26.
[30]
[31] Ex. 28.
[32] Ex. 28 at 11-12.
[33] Ex. 29.
[34] Minn. Stat. § 626.556, subd. 2(f)(2)-(3).
[35] Minn. Stat. § 245A.07, subd. 1.
[36] Minn. Stat. § 245A.07, subd. 2a(b).
[37] See, Testimony of LeChresha Spears.
[38] Ex. 28 at 9-11.