OAH 7-1800-21819-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the Proposed Revocation of the Family Child Care License of Wendy Kettner |
FINDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATION
|
This matter came
on for hearing before Administrative Law Judge (ALJ) Richard C. Luis on March
30, 2011, at the offices of Brown County Family Services,
Tricia Lancaster,
Assistant Brown County Attorney, appeared on behalf of the Minnesota Department
of Human Services (Department) and Brown County Family Services (County). Wendy Kettner (Licensee) appeared on her own
behalf. She was assisted by Bob
Sorenson, her significant other.
STATEMENT OF ISSUES
1.
Should
Ms. Kettner’s family child care license be revoked based upon her failure to
comply with the terms of a previous conditional license as well as repeated
violations of licensing statutes and rules?
2.
Did Ms.
Kettner show by a preponderance of the evidence that she was in full compliance
with applicable laws and rules?
Based on the proceedings
herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Ms. Kettner
was first licensed by the Department of Human Services to operate a family
child care facility in June 2008. At
that time she resided in
2.
Licensee
is a divorced single mother of three children.
She has a boyfriend named Bob Sorenson.[2]
3.
Between
October 16, 2009, and December 28, 2009, Brown County Licensing Worker Denise
Kamm issued four Correction Orders to Licensee for violations including failure
to post emergency phone numbers, placing sleeping infants on their stomach
without parent permission, having a lock on the bathroom door, failure to have
a handrail in place, failure to maintain proper water heater temperature, failure
to maintain a written fire escape plan, failure to activate baby monitors in
rooms of sleeping infants, having a substitute caregiver (her mother) who had
not taken SIDS/Shaken Baby Syndrome (SBS) training care for the children, lack
of supervision, failure to maintain proper admission and permission forms,
providing misleading information to the licensing worker, and exceeding child
capacity limits.[3]
Licensee did not appeal any of the
Correction Orders.
4.
Based
on these repeated violations, Ms. Kamm recommended to the Department on December
29, 2009, that Ms. Kettner’s license be placed on conditional status for one
year.[4]
5.
During
a follow-up visit to Licensee’s home on or about January 12, 2010, Ms. Kamm
issued another Correction Order for failure to maintain enrollment and
immunization forms for certain children in care, failure to post the previous
Correction Orders, and failure to install a handrail on the back stairway. Licensee subsequently corrected these
violations.[5]
6.
On March
12, 2010, the Department issued an Order to Forfeit a Fine and Order of
Conditional License to Licensee. The
Order of Conditional License directed Ms. Kettner to pay a $200 fine for using
a substitute caregiver who had not completed SIDS/SBS training, and allowed her
to continue to operate her daycare, under the following conditions, for a
period of two years:
(a)
You follow and comply with all applicable Minnesota
Rules and Laws;
(b)
No
variances to age distribution or capacity will be granted during the
conditional period;
(c)
You obtain a minimum of six hours of additional
training by September 30, 2010. The training is in addition to the annual
training requirements as listed in Minnesota Statutes, section 245A.50. A portion of the training must be in the
areas of child development and supervision . . .;
(d)
You must submit daily attendance records to Brown
County Family Services on a monthly basis.
The records must be submitted by the 5th of each month for
the previous month beginning April 5,
2010. The record must show the name
and the date of birth of each child, the days and hours they are in your care,
in addition to the names of the caregivers present each day. You must notify
(e)
You must provide and comply with a written plan for
supervision of children in care to Brown County Family Services. The plan must address appropriate supervision
both indoors and outdoors. It must also
address supervision for school-age children when they are away from your
residence. . . The plan must be submitted
by April 2, 2010, and must be
approved by Brown County Family Services;
(f)
You must submit a written plan to
(g)
You
must either provide a copy of the Order of Conditional License to parents of
children in care or document that all parents have been given an opportunity to
review the Order of Conditional License.
You must obtain parent signatures for each currently enrolled child,
verifying they have either received a copy of the conditional order or had an
opportunity to review the conditional order.
You must provide this documentation to
The Order notified
Licensee that
7.
On or
about March 23, 2010, Licensee appealed the Conditional License by submitting a
letter to Brown County Family Services attempting to explain the violations. She stated that she was struggling to get her
life together, that she could not afford to pay a fine, and that she did not
want the Conditional License held against her because she believes she is a
good provider for the children in her care.
Licensee stated that she allows her 11-year-old daughter to watch the
children while they are outside. She
explained that the supervision failure was a result of the children leaving her
yard to go to a park one-half block away without her permission. Licensee also rationalized that she was only
over-capacity for an hour or two on one particular day over Christmas
vacation. Licensee also argued,
regarding the issue of the infant sleeping on his stomach, that she had verbal
permission from the child’s mother to do this.
She also claimed that she had asked her mother to obtain the SIDS/SBS
training, but that her mother was having issues getting the training completed. Licensee stated that she hoped her mother
would complete the training before Licensee needed her again as a substitute
caregiver. Finally, Licensee said that
she intended to move to another town to get a fresh start and did not want to
have the Conditional License as “baggage.”[7]
8.
On March 30, 2010, Ms. Kamm made an unannounced
visit to Licensee’s home to review compliance with the Conditional License. Ms. Kamm noted that the Conditional License
was not posted, that Licensee had not obtained complete immunization records
for two children in care, and that baby monitors were in place on a separate
floor but not in use. Ms. Kamm issued a
Correction Order for these violations, which Licensee corrected in a timely
manner.[8]
9.
On
April 5, 2010, the County received from Licensee monthly attendance records and
documentation of parental notification of the Conditional License. The documentation included this statement
from one of Ms. Kettner’s clients: “I am
comfortable with Wendy’s mom supplying substitute care for my children. I always know when & what hours Cathy [Licensee’s
mother] is going to provide care. It has
never been more then [sic] 1 to 2 days a month.”[9]
10.
On
April 9, 2010, Ms. Kamm called Licensee to clarify that Licensee’s mother could
not provide care to the daycare children until she had completed SIDS/SBS
training, regardless of whether the daycare parents approved of it.[10]
11.
Licensee
paid the $200 fine and withdrew her appeal of the Conditional License on April
20, 2010.[11]
12.
In June
2010, Licensee bought and moved to a home in New Ulm, which is also located in
13.
On July
21, 2010, Ms. Kamm visited Licensee at her home and introduced her to a
consultant who would help Licensee with her daycare training requirements.[14]
14.
Based
upon a complaint received by the County about Licensee’s daycare, Ms. Kamm made
an unannounced visit to Licensee’s home on July 30, 2010. When Ms. Kamm arrived on the premises, she
found two school-age children and two preschool children playing in the backyard
unsupervised. Ms. Kamm waited outside
for approximately five minutes and Licensee did not appear. At that time, one of the school-age children,
Licensee’s 11-year-old daughter, brought Ms. Kamm inside the house to find
Licensee. Licensee was talking on the
phone and ended her conversation. Ms.
Kamm reminded Licensee that her 11-year-old daughter was not allowed to
supervise the children under the rules.
Licensee stated there was an infant napping upstairs, but Ms. Kamm
observed that no baby monitor was in use on the main floor. Ms. Kamm explained that the County had
received a complaint that Licensee had told a child in her care to “shut
up.” Licensee admitted telling the boy
to “shut up” because he would not quiet down when asked. Licensee said that the boy is a challenging
child and he was making noise during the other children’s nap time. Based on what she observed and an inspection
of the home, Ms. Kamm issued a Correction Order for failure to supervise the
children, failure to use a baby monitor for the napping infant, inappropriate
behavior guidance, and failure to post the Conditional License and the past
Correction Orders.[15]
15.
Ms.
Kamm conducted another unannounced visit to Licensee’s home on the morning of
August 3, 2010. She found Licensee
caring for three infants, which is a capacity violation.[16] Licensee explained that she would only be
over-capacity for approximately two hours that day because of an emergency
situation. She said that her boyfriend
told his friend that he could bring the infant over for a short time.[17] Ms. Kamm observed additional violations
regarding the use of a baby monitor, missing immunization records, a playpen
mattress that was without a sheet, an infant sucking on a small quarter-sized
soft ring, failure to notify a daycare parent about the Conditional License,
and failure to post the Conditional License and the past Correction
Orders. She explained to Licensee that
these violations were serious and could result in the revocation of her license
to provide daycare because she was already under a Conditional License.[18]
16.
That
same day, Ms. Kamm followed up with some of the daycare parents to determine if
they were notified of the Conditional License.
One parent stated she was never notified about the Conditional License. Two other parents claimed that their
signatures were forged on the documentation submitted to the County by
Licensee. None of the parents seemed to
understand the full extent of the Conditional License.[19]
17.
On the
afternoon of August 3, 2010, Ms. Kamm returned to Licensee’s home. Ms. Kamm noted the violations from earlier
that day in a Correction Order. She
explained to Licensee that she planned to recommend the revocation of her
daycare license.[20]
18.
By detailed
letter dated August 4, 2010, Ms. Kamm formally requested that the Department of
Human Services revoke Ms. Kettner’s family child care license based on her
failure to comply with the terms of the conditional license dated March 12,
2010, and subsequent similar licensing violations.[21]
19.
Another
20.
On
November 19, 2010, the County received a Training Record from Licensee
documenting 15 minutes of training for the 2009-2010 year. Licensee noted on the form that she had not
completed more training because the County was threatening to revoke her
daycare license.[23]
21.
Licensee
submitted timely attendance records in April, May, June, September, October,
November, and December 2010. The
attendance records submitted by Licensee in July and August 2010, were not
timely.[24]
22.
Ms.
Kamm visited Licensee’s home again on December 6, 2010. She was let in the home by some children in
care because Licensee was on the telephone.
Ms. Kamm reminded Licensee that she still needed to complete a total of
eight hours of training for 2009-2010 and that Licensee’s crib inspection forms
were incomplete. Licensee mentioned that
two new families would be starting at the daycare in January and there was the
possibility of having three infants in care.
Ms. Kamm reminded Licensee that she was not entitled to any age
variances because of the Conditional License.
Ms. Kamm issued a Correction Order for the training and crib inspection
violations.[25]
23.
In a
letter dated December 16, 2010, the Department revoked Ms. Kettner’s license. The Department’s Order of Revocation states,
in part:
Due to the serious and chronic nature of the . . . violations, because
you repeatedly failed to comply with all the requirements of the March 12,
2010, Order of Conditional License and continued to violate applicable rules
and laws regarding family child care after your license was made conditional;
because you continued to operate over your licensed capacity; because you
failed to provide adequate supervision to children, including infants, in care;
because you failed to provide appropriate behavior guidance to a child in care;
and, in order to protect the health, safety, and rights of children receiving
services in programs licensed by DHS, your license to provide family child care
is revoked.[26]
The Order of Revocation advised Licensee of her right to appeal, which
she did in a timely manner on December 27, 2010.[27]
24.
On
January 18, 2011, Ms. Kamm conducted an unannounced visit to Licensee’s
home. At that time, Licensee provided
training certificates to fulfill her training requirements for 2009-2010. Ms. Kamm agreed to help Licensee find more
supervision training to attend. Licensee
also requested SIDS/SBS training for herself and Bob Sorenson, so that he could
act as a substitute provider if necessary.[28]
25.
To
date, Licensee has not completed six hours of training, has not provided the
County with an approved supervision plan, and has not provided an updated plan
for substitute care, as required by the March 12, 2010, Conditional License.[29]
26.
The Department served Licensee with a Notice of
and Order for Hearing dated December 28, 2010, setting the hearing for March
30, 2011, before the undersigned Administrative Law Judge.[30]
27.
Three
of Licensee’s daycare parents provided written or oral support for the care
that Licensee provides for their children.[31]
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
Notice of Hearing is proper and the County and the Department complied with all
procedural requirements.
3. The Commissioner is authorized by state law to suspend or revoke a family child care license or impose a fine if the license holder “fails to comply fully with applicable laws or rules . . . .”[32] If the Commissioner finds that the license holder has not corrected the violations set forth in a correction order or conditional license, the Commissioner is authorized to impose a fine and order other licensing sanctions.[33] When imposing sanctions on a license holder, the Commissioner of Human Services is required to “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.”[34]
4. Before revoking a family child care license, the Commissioner “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 . . . the qualifications . . . of the license holder.”[35]
5. The Commissioner of Human Services has adopted rules establishing procedures and standards for licensed child care providers “to ensure that minimum levels of care and service are given and the protection, proper care, health, safety, and development of the children are assured.”[36]
6. The Commissioner may issue a Correction Order to a license holder if the Commissioner finds that the license holder has failed to comply with an applicable law or rule. The Correction Order “must state: (1) the conditions that constitute a violation of the law or rule; (2) the specific law or rule violated; [and] (3) the time allowed to correct each violation . . . .” If a license holder fails to correct the violations specified in the correction order, the commissioner may . . . order . . . licensing sanctions pursuant to Minn. Stat. 245A.07.”[37]
7. At a hearing relating to the revocation of a family child care license, the Department may demonstrate reasonable cause for action taken by submitting statements, reports or testimony to substantiate the allegations that the license holders failed to comply fully with applicable law or rule. If the Department demonstrates reasonable cause existed to believe that a violation occurred, the burden of proof shifts to the license holder to demonstrate by a preponderance of the evidence that he or she was in full compliance with the applicable law or rule.[38]
8. The supervision rules for a licensed child care facility require that a caregiver be “within sight or hearing of an infant, toddler or preschooler at all times so that the caregiver is capable of intervening to protect the health and safety of the child.”[39]
9. The Department demonstrated reasonable cause for adverse action against Licensee in relation to the March 12, 2010, Conditional License and the July 30, 2010, failure to supervise the children in her backyard. Licensee admits that having her 11-year-old daughter watch the children was not appropriate, and accordingly, has not demonstrated that she was in full compliance with applicable law or rule.[40]
10. Group family day care providers must comply with the capacity limits and age ratios set forth in rule. A category C-2 licensee may have up to 12 children in care. Of the total children under school age (maximum of 10), no more than two shall be infants and toddlers. Of that total, no more than one shall be an infant.[41]
11. The Department demonstrated reasonable cause for adverse action against Licensee in relation to the March 12, 2010, Conditional License and the August 3, 2010, over-capacity situation. Licensee admits that she exceeded her infant capacity, and accordingly, has not demonstrated that she was in full compliance with applicable law or rule.[42]
12. The use of substitute caregivers must be limited to a total of not more than 30 days in any 12-month period.[43]
13. While the Department included this allegation in the Order of Revocation, it did not demonstrate reasonable cause for adverse action against Licensee on that basis.
14. Licensed providers must offer constructive and positive behavior guidance that gives children a positive self-concept. “Emotional abuse,” including name calling, ostracism, shaming, and derogatory remarks, is prohibited.[44]
15. The Department demonstrated reasonable cause for adverse action against Licensee in relation to the July 30, 2010, report that she told a child in care to “shut up.” Licensee admits that she became frustrated when the child would not quiet down as directed, and that she ultimately told the child to “shut up.” Accordingly, Licensee has not demonstrated that she was in full compliance with applicable law or rule.[45]
16. Licensed providers are required to maintain detailed records on each child admitted to their program, including the name and birth date of each child, the names and contact information for the parents, emergency telephone numbers, names of persons authorized to remove the child from the residence, and enrollment dates.[46] Licensed providers must also maintain, in writing, any special instructions from the parent regarding the care of the child (e.g. sleeping and napping habits).[47] Immunization records must also be maintained and updated for each child.[48]
17. The Department demonstrated reasonable cause for adverse action against Licensee in relation to the March 12, 2010, Conditional License and the failure to have completed admission and arrangement forms for all children in care on August 3, 2010. Licensee could not produce immunization forms for four children in care, and her documentation for another child was incomplete during the August 3, 2010, unannounced visit by the County. Accordingly, Licensee has not demonstrated that she was in full compliance with applicable law or rule.[49]
18. There are numerous licensing rules regarding the sanitation and health in a child care home, including, among others, requirements that:
(a)
“Knives, matches, plastic bags, and other
potential hazards must be kept out of the reach of infants, toddlers, and
preschoolers. The use of potentially
hazardous materials and tools must be supervised;”[50]
and
(b)
“Clean, separate bedding must be provided for
each child in care.”[51] Fitted crib sheets that fit tightly on crib
mattresses are required to reduce the risk of SIDS.[52]
19.
The Department demonstrated reasonable cause for
adverse action against Licensee by establishing that on August 3, 2010, an
infant in care had access to a small, quarter-sized soft ring and Licensee did
nothing to intervene to protect the infant.
The Department has also demonstrated reasonable cause for adverse action
against Licensee by establishing that on August 3, 2010, the crib mattress on
which an infant was sleeping did not have a sheet on it.[53] Licensee
did not show by a preponderance of the evidence that she was in full
compliance with either of these requirements.
20.
When Brown County licensing workers returned to
Licensee’s home in December 2010, and January 2011, Licensee still was not in
compliance with the March 12, 2010, Conditional License or the relevant laws
and rules.
21.
The violations found by
22.
Licensee
failed to comply with several provisions of the Conditional License in that she
did not abide by all applicable
23.
Licensee’s
violations of the day care laws and rules after issuance of the Conditional
License were chronic and of a similar nature to earlier violations for which
she had been cited, even after she was disciplined by Correction Orders and an
Order of Conditional License, and after she had appealed the Order of
Revocation.
24.
The
evidence is inconclusive that Licensee forged two parents’ signatures on forms
claiming the parents knew her license was conditional.[55]
25. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
Based on the Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT
IS RECOMMENDED that the Commissioner of the Department of
Human Services AFFIRM the revocation
of the Family Child Care License of Wendy Kettner.
Dated: April 28, 2011
s/Richard C. Luis
|
RICHARD C. LUIS 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 Lucinda Jesson, 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.
[1] Testimony of Licensee and Denise Kamm. See also, Minn. R. 9502.0367 (2009).
[2] Test. of Licensee.
[3] Exs. 1-4.
[4] Ex. 5.
[5] Ex. 6.
[6] Ex. 7, pp. 7-8.
[7] Ex. 9.
[8] Ex. 8.
[9] Ex. 10; Ex. A to the Notice of and Order for Hearing (Ex. A).
[10] Ex. A.
[11] Ex. 11.
[12] Ex. A; Test. of Licensee and Bob Sorenson.
[13] Ex. 12. See also, Ex. 14.
[14] Ex. A.
[15] Ex. A; Test. of D. Kamm; Ex. 13.
[16] Ex. A; Test. of D. Kamm.
[17] Test. of Licensee; Test. of B. Sorenson.
[18] Ex. A; Ex. 16; Test. of D. Kamm.
[19] Ex. A; Exs. 14 and 16.
[20] Ex. A; Exs. 15 and 16.
[21] Ex. 16; Test. of D. Kamm.
[22] Ex. A; Ex. 17.
[23] Ex. 18.
[24] Ex. 22.
[25] Ex. A; Ex. 19.
[26] Ex. 20.
[27] Ex. 21.
[28] Ex. A.
[29] Ex. A.
[30] While there is no Certificate of Service in the file, Licensee acknowledged at the hearing that she received the Notice of and Order for Hearing.
[31] Testimony of Jackie Bolduan; Exs. 23 and 24.
[32] See,
[33] See,
[34] See,
[35] See, Minn. Stat. § 245A.04, subd. 6 (2010).
[36] See,
[37] See,
[38] See,
[39] See,
[40] Ex.
A. Test. of Licensee.
[41] See,
[42] Ex.
A; Ex. 16; Test. of Licensee; Test. of B. Sorenson.
[43] See,
[44] See,
[45] Ex.
A; Ex. 16; Test. of Licensee.
[46] See, Minn. R. 9502.0405, subp. 4.A (2009).
[47] See, Minn. R. 9502.0405, subp. 4.B (2009).
[48] See, Minn. R. 9502.0405, subp. 4.C (2009).
[49] Ex.
A; Ex. 16.
[50] See,
[51] See,
[52] See,
[53] Ex. A; Ex. 16.
[54] See, Findings 22 and 24.
[55] See, Finding 16.